“What the constitution ought to be is not a proper argument to be addressed either to this or the United States’ court—What it is, is the present inquiry.”—Mr. Williams for Virginia

[Ed: Here are the arguments of counsel in this landmark case, for which I have previously included the opinions of the four judges of the Virginia Court of Appeals in response to the Supreme Court’s reversal and mandate to the Virginia Court. See The U.S. Supreme Court Has No More Jurisdiction Over State Courts Than It Has Over the Courts of Calcutta-Judge Spenser Roane.]


Fairfax’s Devisee v. Hunter.

Found at The American law journal: Volume 6 – Page 313

Table of Contents

Leigh, for Fairfax’s devisee

Williams, contra, for Virginia

Wirt, for Fairfax’s devisee

Nicholas, for Virgina

Hay, as amicus curia for Virginia

The 25th section of the judicial act of congress, giving appellate jurisdiction to the Supreme court of the United States, in certain cases therein specified, to re-examine, and reverse or affirm, the decisions of the Supreme state courts, is unconstitutional.

[Ed: Here is a synopsis of the original case that was appealed to the U.S. Supreme Court where the Virginia Court of Appeals was reversed and ordered to enter judgment for Fairfax.]

The original case was determined in the court of Appeals of Virginia, by judges Fleming and Roane, and is reported in vol. 1. p. 218. of Munford’s Virginia Reports. The following succinct state of the case, by judge Roane, in giving his opinion, is full enough for our present purpose.

“This was an ejectment, brought by the appellant (David Hunter) against Denny Fairfax, under whom the appellee (devisee of David Fairfax) claims in the District court of Winchester.

“At the trial, the parties argued a case in lieu of a special verdict. That case agrees, inter alia, various acts of assembly respecting the territory of the Northern Neck, as is therein more particularly stated; the treaty of peace of 1783, between the United States and the king of Great Britain; the act of 1784, respecting future confiscations; that lord Fairfax (the proprietor of the Northern Neck) died, a citizen of this commonwealth, in December 1781, having devised his lands in the Northern Neck to Denny Fairfax, who was born in England, in the year 1750, and has never become a citizen of Virginia, nor of any of the United States; that the land in controversy was a part of the lands in that territory called and described by lord Fairfax, as waste and ungranted land; that the appellant (Hunter) obtained a grant therefor, from the commonwealth of Virginia, on the 30th of April, 1789, entered, and was possessed in pursuance thereof, until ejected; and that no inquisition of escheat or forfeiture was ever found in relation to this land, under the ordinary acts on this subject, as extended to the said territory, since the death of lord Fairfax.

“Referring to the case itself for a more particular statement, these are the facts which seem most important in the present instance. There are other facts, which seem to relate to the question, whether lord Fairfax had an absolute fee estate in the soil of the said territory, or only a seignoral right thereto: a question unnecessary to be stirred in the present instance, as my opinion will go upon the admission that he had the former. The District court gave judgment for the appellee (Fairfax’s devisee), from which an appeal was taken by the appellant (Hunter) to this court. It is necessary here to state, that the judgment was rendered the 20th day of April, 1794; which accounts for the omission to state in the case agreed, either the treaty of 19 November, 1794, between the United States and Great Britain, or the act of compromise of 10 October, 1796, between the commonwealth and the purchasers under Denny Fairfax.

“On the part of the appellant (Hunter) it is contended, that Denny Fairfax was, at the time of the devise in question, and ever after, an alien, and incapable of holding lands in this commonwealth; that admitting an inquest of office to have been necessary under the general laws, as applying to ordinary cases, the several acts of assembly stated in the case, respecting the mode of acquiring titles to waste and unappropriated lands in the Northern Neck, were equivalent thereto, and supplied the place thereof, In relation to such lands, and justified the grant by the commonwealth; and that the act of compromise of 1796 aforesaid ceded the title to the appellant (Hunter), even if it were not complete without it.

“On the part of the appellee (Fairfax’s devisee), on the contrary, it is contended that the original appellee, Denny Fairfax, was capable of taking and holding the land devised to him, until devested by an inquest of office, or some equivalent act, and that no such act had taken place prior to the treaty of peace, which (it is further alleged) protected his property, and released the right of the commonwealth to the hind in question. It is also contended, that the act of compromise (being passed subsequent to the judgment in this case) does not affect it, and cannot be introduced into the cause so as to vary that judgment.”

The opinion of judge Roane was in favour of Hunter, on all the points above stated; judge Fleming’s opinion was in favour of Fairfax’s devisee, on all the points but the last; on which he agreed that the act of compromise of 1790* vested a complete title in Hunter. The result was that the judgment of the District court for Fairfax‘s devisee was reversed, and judgment entered for Hunter.

*This act, reciting a controversy between the commonwealth of Virginia and the devisees of lord Fairfax, and a resolution of the legislature, that in case the devisees of lord Fairfax, or those claiming under them, would relinquish all claim to lands, supposed to lie within the Northern Neck, which were waste and unappropriated at the time of lord Fairfax’s death, it would be advisable for the commonwealth to relinquish all claim to any lands specifically appropriated by the said lord Fairfax to his own use, either by deed or actual survey; and reciting, that this proposal had been accepted:—for carrying the said agreement and accommodation into effect, Enacted, “That upon the execution of a deed by Denny Fairfax, or those having title under him or lord Fairfax, extinguishing, on behalf of the commonwealth, his or their title to all lands lying within the Northern Neck, which, by the terms of the above recited proposal and agreement, he or they are bound to relinquish; all claim, right, and title of the commonwealth of Virginia, in and to any lands lying in the said Northern Neck, which are by the terms of the said proposal and agreement to be relinquished, shall from thenceforth be extinguished, null, and void; and the said Denny Fairfax, and those claiming under him, and his or their heirs, shall hold the same, as if he the said Denny had been a native citizen of this commonwealth, and as if no escheat or forfeiture thereof had ever taken place; any act to the contrary notwithstanding.”

To this judgment Fairfax‘s devisee obtained a writ of error from the Supreme court of the United States; where the judgment of the court of Appeals of Virginia was reversed, and that of the District court of Winchester affirmed. Upon which the Supreme court of the United States sent to the court of Appeals of Virginia the following mandate:—

United States of America, to wit: the president of the United States, to the honourable the judges of the court of Appeals in and for the commonwealth of Virginia, greeting: Whereas lately, in the court of Appeals in and for the commonwealth of Virginia, in a cause wherein Timothy Trytitle, lessee of David Hunter, was plaintiff and appellant, in said court, and Philip Martin, heir at law and devisee of Denny Fairfax, deceased, was defendant and appellee, in a plea of ejectment (the same being an appeal from the court held for the district, 8cc.) the said court of Appeals did, by judgment of said court, reverse and annul the judgment of the said court, for the district, &c. with costs, and did give judgment for the appellant in the said court of Appeals, against the said appellee, and the costs of the said appellant in the said District court; as by the inspection of the transcript of the record of the said court of Appeals, which was brought into the Supreme court of the United States, by virtue of a writ of error, agreeably to an act of congress in such case made and provided, fully and at large appears. And whereas, in the term of February, 1813, the said cause came on to be heard in the said Supreme court, on the said transcript of the record of the said court of Appeals, and was argued by counsel; on consideration whereof this court is of opinion that there is error in the judgment of the court of Appeals in and for the commonwealth of Virginia: It is therefore adjudged and ordered that the judgment of the court of Appeals in and for the commonwealth of Virginia, in this case, be and the same is hereby reversed and annulled, and that the judgment of the District court of Winchester be affirmed, with costs; and it is further ordered that the said cause be remanded to the said court of Appeals, in and for the commonwealth of Virginia, with instructions to enter judgment for the appellant, Philip Martin—and the same is hereby remanded accordingly. You therefore are hereby commanded, that such proceedings be had in the cause as, according to right and justice, and the laws of the United States, and agreeably to said judgment and instructions of said Supreme court, ought to be had, the said writ of error notwithstanding. Witness, &c.”

[Ed. End of synopsis of original opinion. Here now is the report of the arguments.]

When this mandate was presented to the court of Appeals of Virginia, that court, after much reflection, informed the bar, “that it had doubts whether it ought to register and enforce the mandate? whether this was a case in which jurisdiction was given to the Supreme court of the United States by the judicial act of congress? whether it was shown of record that any decision was given by this court against the validity or application of any treaty? and whether the jurisdiction exercised in this case by the Supreme court of the United States be justified by the constitution?” Upon these points the court desired to hear the counsel of the parties, and any other gentleman who was disposed to express his sentiments, the questions being of great delicacy, and of public concernment.

These points, thus suggested, were accordingly argued by Wirt and Leigh, of counsel for Fairfax‘s devisee, and by Williams, of counsel for Hunter; and (in consequence of the invitation of the court) by Nicholas, attorney-general of Virginia, and Hay, then district attorney of the United States.

Leigh, for Fairfax‘s devisee. The doubts suggested by the court are resolvable into two questions: Is the judicial act of congress, giving the Supreme court of the United States appellate jurisdiction over the Supreme state courts, in the cases therein specified, constitutional? If so, does it give such appellate jurisdiction in this case? But there is a preliminary question, which I must beg the court to consider: To which does it belong to decide points of federal jurisdiction, to the Supreme court of the United States, or to the Supreme state tribunals?

I contend that it belongs to the Supreme court of the United States to determine, in the last resort, what jurisdiction it may constitutionally and legally entertain.

In the first place, all such questions involve the construction of the constitution, and the construction, application, and validity of a law of the United States, namely, of such parts of the constitution, and of the act of congress, as define the cognizance of the national judiciary. They are, in the strictest sense, questions arising under the constitution and laws of the union. There is no more common and fit subject of judicature than that of jurisdiction. Neither is there an imaginable ground for a distinction, in regard to the proper tribunal to expound them, between those parts of the national institutions that relate to that subject, and any other parts thereof. The whole judicial power of the union is vested in its judiciary; that power is expressly extended over its constitution, laws, and treaties, without any exception; and these are ordained the supreme law of the land, paramount to the laws, constitutions, and courts of the several states. [Const. U. S. art. 3. §1, 2. art. 4. cl. 2.] The right of the national judiciary to ascertain its own cognizance, results, therefore, from the very words and plain sense of the constitution. It were strange indeed if the right of expounding one part of the supreme law of the union were denied to the national tribunal, and conceded to it as to all the rest—if the right of expounding that law were withheld from the federal judiciary, appointed to enforce it, and specially entrusted with and responsible for its due administration, and conceded to the state judiciary, which it is to control, which is not so entrusted, not so responsible—if the federal court were to exercise, and the state court to ascertain, the federal cognizance: in other words, if the power of expounding were severed from the power of administering a law, and those powers, in their nature inseparable, vested in different and conflicting tribunals.

In the next place, if the state courts are to ascertain the bounds of federal cognizance, all the objects intended to be effected by the establishment of a national judiciary, will be defeated. To secure uniformity of decision in questions of national concernment, obviate the ill effects of state prejudices, in cases wherein they were likely to intervene, and endue the general government with complete independent power, to guard its own constitution, execute its own laws, and enforce observance of its own engagements, and thus preserve the harmony of the system, the peace and tranquillity of the nation: these were the chief objects for which the federal judiciary was provided. [Federalist, vol. 2. let. 80. and Virg. Debates on Const. U. S. art. 3.] Now is it not plain that uniformity of decision may be prevented, as well by various decisions of the state courts, denying or allowing cognizance to the federal courts, as by various decisions on the merits? that state prejudices may operate as powerfully to induce a denial of jurisdiction to the federal courts, as of impartial justice to individuals? and that these courts can, in no manner, so effectually be prevented from exercising their judicial powers, as by withholding causes from their jurisdiction? Indeed, such a power vested in the state courts, would impair, almost to annihilation, that portion of the efficiency of the general government which it derives from its judiciary. A law of the union, unpopular and odious in any one or more states, would be there wholly, or which is worse, partially, in operation: for the state judges would, in all likelihood, participate in the prevailing sentiment of their own state, and would, therefore, be little disposed to tolerate, if they were competent to prevent, the execution of measures they abhor. Reasons, plausible to the world, and convincing to minds at all inflamed with party spirit, would never be wanting, to justify a denial of the jurisdiction of the national tribunals to execute an offensive act of congress; such as its unconstitutionality, its inapplicability, or the like. There is a propensity, in this country, to condemn as unconstitutional those measures of the general government that are disapproved as impolitic; and the state courts would have little hesitation in deciding, that the federal courts have no power to execute an unconstitutional law. Had the state courts possessed and exercised such a power, the history of this government, from its foundation, would have abounded with instances to illustrate this argument; of which, I dare say, every great state, would, sooner or later, have exhibited its full proportion. [Here the counsel mentioned some recent and some more ancient occasions.] If the Supreme court of the United States administer the laws of the union, in the last resort, we shall at least have a judicial, in place of an executive execution of them; we shall have uniformity in their operation, and one reason, exclusively applying to the federal judiciary, to hope that they will be justly administered; the federal judges are directly responsible for the mal-administration of them.

If, as the judicial act of congress supposes, the cognizance of the federal and state courts be in most cases concurrent, and where concurrent, the former may constitutionally exercise appellate jurisdiction over the latter; then, so far, the federal and state courts form one system of judicature. It must be so in the nature of things; they are to adjudge the same question, between the same parties, in the same cause, touching the same subject matter. This court holds it wise to avail itself, as far as it may, of the wisdom of foreign jurisprudence: but the government of the United States presents a combination of political principles altogether singular: therefore, no exact analogy from foreign judiciaries can be adduced. An appeal lies from the Irish court of King’s Bench to that of England, and from the Irish chancery’ [1 Bl. Comm. 104. 3 Ibid. 44. 410.], and from the Scotch lords of session, to the British house of lords. I discern not how the diversities between their political systems of union and ours, can materially affect the analogy between our judicial system and theirs: but of that the court will judge. There can be no doubt, however, that the Scotch and British tribunals, in the one instance, and the Irish and British in the other, are by them regarded as forming one system of judicature. So the federal and state courts, where their cognizance is concurrent, and that of the former appellate, are to be regarded as “one whole.” I borrow the phrase, as well as the doctrine. [Fed. vol. 2. let. 82.] If true, surely it belongs to the federal (i. e. the superior), and not to the state (i. e. the inferior) court, to judge, in the last resort, of the appellate jurisdiction of the former. It is incident to the very nature of a superior appellate jurisdiction. So an appeal lying, in certain cases specified by statute [27 Eliz. c. 8.], from the King’s Bench to the Exchequer Chamber, in England, neither the King’s Bench to which the writ of error lies, nor the Chancery from which it emanates, but the Exchequer Chamber, determines its own jurisdiction. [Loyd v. Icut, Doug. 350. n. 91.] So the British house of lords determines its own jurisdiction over the Scotch [Greenshields v. lord Provost of Edinburgh, Colies’ Parl. Ca. 427.] and Irish [Belsham’s Hist. of G. Britain, book 7.] courts. So, also, our court of Appeals determines its own jurisdiction. The case of Bedinger v. the Commonwealth [3 Call, 461.] is not authority, unless it be the province of this court to decide, whether it can entertain criminal jurisdiction, and whether a case be civil, and therefore within, or criminal, and therefore without, its jurisdiction. Why should the doctrine hold in regard to the state appellate court, and not in regard to the federal? Because the jurisdiction of this court in general, and that of the Supreme court of the United States is limited? No: this is also a court of limited jurisdiction, in many respects; limited certainly to civil causes. Because the state courts, over which the Supreme court of the United States is to exercise appellate jurisdiction, are themselves supreme sovereign courts, whereas the courts over which this court holds such jurisdiction are not sovereign? No: for, 1st. In respect to cases in which the Supreme court of the United States has jurisdiction over this court, this is not a sovereign court: and, 2dly. As to cases in which no appeal lies to this court from the other state courts, the latter are the sovereign courts; the General court, for example, is our supreme criminal court.

The right claimed for the Supreme court of the United States to ascertain its own cognizance is analogous to other parts of the federal system. For instance—the militia is not taken out of the hands of the state governments: the general government is only authorized to call it forth, “to execute the laws of the union, suppress insurrections, and repel invasions.” The state judges are still the guardians of the personal security of the citizen; but the general government may suspend the writ of habeas corpus, u when, in cases of rebellion or invasion, the public safety may require it.” But who is to judge of the occasions, on which the militia may be constitutionally called out, or the habeas corpus suspended? The general government. The judicial power of the union is indeed limited; but who is to judge of the occasions on which it may rightly be exercised? The national judiciary. In truth, whenever power is vested in a government or a court, those in whom it resides are necessarily made judges of the rightful exercise of their authority; subject to the correction of an umpire, if one be provided; if not, to the responsibility attached to their office.

If it be objected, that if the federal court is to judge of its own jurisdiction, it may deprive the state courts of all jurisdiction, one answer is, that, e converso, if the state courts are to determine such questions, they may destroy the federal cognizance. This is reasoning from the possible abuse of power, not against the expediency, but against the fact, of a grant thereof. The true constitutional answer to all such objections, is, the responsibility of the judges; and as the federal judges are impeachable by the representatives of the people, and triable by those of the states, there is little danger of their encroaching on the exclusive jurisdiction of the state courts.

Let it be considered, also, that this right of the Supreme court of the United States to ascertain its own jurisdiction, has been exercised and acquiesced in from the very foundation of the government. In Chisholm v. Georgia [3 Dall. 419.], the great principle of state suability was asserted; some thought, erroneously; others, that if rightly, such a jurisdiction ought to be abolished; and, therefore, the constitution was explained [Amend. Const. U.S. 11. which is declaratory]; but the competency of the Supreme court to decide that great question of jurisdiction was never doubted. In The United States v. Peters [5 Cranch, 382.] (Olmstead’s case), the Supreme court held, that it was its peculiar province to judge of its own jurisdiction, and that it had cognizance of that case; while the state of Pennsylvania declared, by statute, that the jurisdiction claimed was unconstitutional, and required her executive to resist its decree by force: the court prevailed, at last, and by the strength of truth alone. There are many other cases, brought from various quarters of the union, and decided at various periods, in which the Supreme court of the United States has exercised this right of determining its own jurisdiction; as often, by the way, disallowing as asserting its cognizance. [Olney v. Arnold, 3 Dall. 308. Matthew v. Zane, 4 Cranch, 382. Smith v. Maryland, 6 Cranch, 286. New York v. Connecticut, 3 Dall. 3. Strawbridge v. Curtis, 3 Cranch, 267; Gordon v. Gladcleugh, lb. 268. Montalet v. Murray, 4 Cranch, 47. Diggs v. Wolcot, Ib. 179. Divings v. Norwood, 5 Cranch, 344.] Hence we may gather the general judgment of the American public, and especially of the state authorities. I have met with but one solitary opinion of any state court, that it is not the right of the federal judiciary to ascertain its cognizance; an opinion which it behoves me to treat with high respect. In Respublica v, Cobbett [3 Dall. 274.], chief justice McKean, of the Supreme court of Pennsylvania, is reported to have held, generally, that in questions between state and federal cognizance, the constitution of the United States has provided no umpire; that the state and national judiciary have each equal right to decide; that this is a casus omissus in the constitution; and that an extraordinary tribunal ought to be established, to adjust such questions. Now, 1. This opinion, if meant to be general, was so far extrajudicial; for the case was, an application to the state court, to send a cause, before judgment, to the Circuit court of the United States, so that no collision of opinion, as to cognizance, could arise between the two courts, since, in such a case, by the judicial act of congress, the federal court exercises no judgment whatever [Laws U. S. 1 Cong. 1 Sees. c. 20. § 12.]; and besides, it was a criminal case, arising under the state laws, and so clearly belonging exclusively to the state tribunals.— 2. This dictum is incompatible with another position, asserted in the same opinion; that is, that the federal and state governments constitute one complete system. 3. Although it be no where expressly provided by the constitution of the United States, that the federal judiciary shall control that of the states, in questions of jurisdiction, yet it is to be inferred (as I have endeavoured to show), from those parts of the constitution that relate to the judiciary, and to the supremacy of the federal institutions, taken together. 4. The state of Pennsylvania has since, in Olmstead’s case, acquiesced in a decision directly contrary to that of her chief justice. That state, shortly after the dispute in Olmstead’s case, proposed an amendment to the constitution of the United States, to provide an impartial tribunal, to decide disputed points of jurisdiction between the state and national judiciaries; on which the general assembly of Virginia solemnly resolved, that no such amendment is necessary or proper; and that the Supreme court of the United States is and ought to be the constitutional tribunal to determine all such questions; sustaining me in the whole course of my argument on this head. [Resolution agreed to by both houses, Jan. 26, 1810. 2 vol. Rev. Code, Supplement, p. 150.] I have not had the means of knowing what reception the proposal met with in other states. It was deemed of so little moment that it is already almost forgotten.

If I have established this preliminary point, that the question belongs to the Supreme court of the United States, and not to this court, there is an end of the debate. In Smith v. Maryland, the Supreme court has directly decided the point of law [6 Cranch, 286.]; and from Laird v. Stuart, we may learn how it would decide the constitutional point. [1 Cranch, 309.] It has actually decided this case itself.

But my duty requires that I should meet the questions, suggested by the court, respecting the constitutionality and legality of the jurisdiction exercised in this case.

Is the judicial act of congress, giving the Supreme court of the United States appellate jurisdiction over the Supreme state courts constitutional?

Let the constitution and the law be compared [Const. U. & art. 3. § 2. Laws U. S. 1 Cong: 1 Sess. c. 20. § 25. vol. 1. p. 63.]; and it will be seen that the law abridges the federal cognizance, which the constitution would authorize. The constitution gives the national judiciary cognizance in all cases, arising under the constitution, laws, and treaties of the union, whether its interference be necessary or not to support the authority of the federal institutions; but it is only when necessary for that purpose that the law gives the Supreme court of the United States appellate jurisdiction over the state courts. The constitutional jurisdiction of the national judiciary depends, in some instances, on the character of the parties, and in others, on the nature of the cause, and extends over cases of every description, if the character of the parties, and over persons of every description, if the nature of the cause be such as bring them within the federal cognizance. The law gives the Supreme court appellate jurisdiction over the state courts, only in that class of cases, in which federal cognizance is derivable from the nature of the cause; and not then, unless the character of the case, of the decision, and of the court which renders it concur: the subject in litigation must exceed a given value; the decision must be of the highest state tribunal; and it must be against the authority of the federal institutions, or claims set up under them. Therefore, as to the extent of the jurisdiction of the Supreme court of the United States, as by law defined, the law, narrowing the constitutional limits of federal cognizance, is clear of constitutional objections.

But the doubt may be, if the federal cognizance may be constitutionally exercised in this appellate form.

I have always thought that this form of federal jurisdiction is the most favourable to the authority of the state courts, that can be devised; following the opinion of Mr. Pendleton, [Virg. Debates, edit. 1805. pp. 367, 389.] and the reasoning of Publius. [Fed. vol. 2. let. 81, 82.]

The words of the constitution, in fair and natural construction, authorize congress to give the Supreme court appellate jurisdiction over the state tribunals. “In all cases affecting ambassadors, other public ministers, and consuls, and those in .which a state shall be a party, the Supreme court shall have original jurisdiction; in all the other cases before mentioned, the Supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as congress shall make.” Now, pretermitting the argument, which might be drawn from the broad power given to congress, to qualify and regulate, according to its wisdom,—in other words, to mould into convenient form,—this appellate jurisdiction of the Supreme court; I see not how the words quoted can be satisfied, but by extending that jurisdiction over every court, in which any of the cases referred to, as “cases before mentioned,” may arise. The “cases before mentioned,” are, ” all cases arising under the constitution, laws, and treaties” of the union, &c. no matter in what court arising, state or federal; and if the Supreme court is not to have appellate jurisdiction over such of the cases specified, as may arise in the state courts, it will not have jurisdiction in all those cases. It cannot be said that the effect of the words quoted is to fix the relation between the Supreme and the inferior federal courts, and not between the former and the state tribunals also, unless it can be shown that the federal cognizance is exclusive of that of the state courts.

I need not inquire how large a portion of jurisdiction such a construction would take from the state courts, nor represent the extent of encroachment on federal cognizance, of which, upon that construction, the state courts have all along been guilty.

The constitution no where declares, that the federal cognizance shall be exclusive in any case: it provides that the federal cognizance shall extend to, not that it shall appropriate, the cases therein described. There are cases, indeed, which, from their nature, exclusively belong to the national tribunals; cases purely national; cases, for instance, of admiralty and maritime jurisdiction; a class of cases readily distinguishable. Such cases excepted, in all the other cases of federal cognizance, the state and federal courts have concurrent jurisdiction.

It has never been supposed that the powers of any department of the general government are exclusive of the state authorities, unless in their nature exclusive, or so expressed to be. Does the grant of power to congress to lay direct taxes exclude the state governments from the right of direct taxation? If the mere grant of powers to the general government were an exclusion of concurrent powers in the state governments, why that section of the constitution, expressly prohibiting the states from a concurrent exercise of some of the delegated powers? [Const. U. S. art. 1 § 10.]

Every object of establishing a national judiciary requires that the federal cognizance,—with the exception above stated,— should be concurrent with that of the state courts; and where concurrent appellate. If it were exclusive, there would be no relation whatever between the national and state tribunals; therefore no mode by which the former could prevent the intrusions of the latter; and this anomaly might occur, that various sovereign courts might decide the same cause, at the same time, and rightfully,—in a legal view, as there would be no remedy,—enforce opposite judgments of the same matter. If the jurisdiction were concurrent, and the federal appellate jurisdiction over the state courts were taken away, then there would be as many sovereign courts as states, without relation or obligation to one another, each to decide, in the last resort, an questions in which the whole nation have equal concern.*

* See opinion of chief justice Tilghman, of Pennsylvania, ex parte Lockington, on a habeas corpus, delivered November 22, 1813. 6 Hall’s Am. Law Journ. 92. 301.

It may be objected that, as the whole judicial power of the union is vested in the federal courts, and the judges thereof are to be commissioned and sworn, &c. the state judges, not being so qualified, cannot exercise the inferior federal cognizance. But, if the federal and state cognizance be concurrent, the state judges are only exercising state cognizance, while the cause remains with them.

Have not the courts of Virginia, in effect, acquiesced in the constitutionality of this appellate jurisdiction of the Supreme court of the United States? The conscientious opinion, I believe, of every judge in the commonwealth, except chancellor Wythe, was, that such British debts as had been paid into the treasury, according to law, were not recoverable of the original debtors. The federal court determined otherwise; and our courts all, immediately and invariably, conformed to that precedent. Why, if it were not authoritative! Why authoritative, if the Supreme court had not that appellate jurisdiction now called in question? The court remembers the opinions of the judges of those times, and knows, better than I, how far I am upheld by their authority.

A main objection to this appellate jurisdiction will be, that it impairs the state sovereignties. But that is an objection, not to the constitutionality of the judicial act, but to the constitution of the United States itself; and not to the institution of the judicial department only, but to the whole system. It is the existence of the federal cognizance at all, and not the form in which it is exercised, that impairs the state sovereignties. Surely these are as much impaired by the transfer of a cause from a state to a federal tribunal, before as after judgment rendered: yet this court saw no constitutional difficulty, or state degradation, in the former case. [Brown v. Crispin, 4 Hen. and Munf. 173.) The states have surrendered to the general government the highest attributes of sovereignty; and the federal power, acting in its sphere, is expressly made paramount and supreme, capable to control the state authorities, legislative and judicial. Happy for the union, if the pride of state sovereignty could abate, in some proportion to the diminution which the substance has undergone!

Recollecting when, and by whom, the judicial act was passed, no answer can be more reasonable and apposite to the objections now made to its constitutionality, than that of the Supreme court, in Laird v. Stuart [cited supra], to another objection to the constitutionality of the same law. “To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under ‘the law,’ for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed, fixed the construction. It is a contemporary construction of the most forcible nature. This practical exposition is too strong to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.”

Supposing the judicial act constitutional, does it give the Supreme court of the United States appellate jurisdiction of the present case?

The cases of Owings y. Norwood, and Smith v. Maryland [cited supra] exhibit the opinion of the Supreme court on points of jurisdiction like the present; its reasoning on the subject; and the line of demarcation which it has drawn between its own and the state cognizance.

This is a case within the appellate jurisdiction of the Supreme court, as by law defined, according to the plain words of the law; it is a case,”where is drawn in question, the construction of a clause of a treaty of the United States and the decision” of the state court,” is against the title, right, privilege and exemption, specially set up and claimed, under such clause, of such treaty, by one of the parties.” [Laws U. S. 1 Cong. 1 Sess. c. 20. § 25.]

I yield every possible advantage, when I consent to take the character of the cause, of the claims of the parties, and of the decision from Mr. Munford’s report; [1 Munf. 218.] for it is there only we find the point on which this court concurred in deciding the case: whereas it was the record alone, which the Supreme court could regard, in revising the judgment. The treaty of peace of 1783, is expressly found as an essential part of the case. One party contended, that, owing to the situation of the property in dispute, and to the alien character of Fairfax’s devisee, the treaty did not protect his claim; and that, at any rate, his right was released by the act of compromise: [2 Rev. Code, app. No. V. p. 71, 2.] the other party insisted, that the treaty did apply to the case; that it did protect the claim; and that the act of compromise, being no part of the record, could not affect the question. The court proceeded to consider the meaning, effect, and application of the treaty. One judge said in effect, that the construction of the treaty, came necessarily to be considered and determined: he adopted a former extrajudicial opinion on the same clause of the treaty, in order to make it judicial: and he decided, that the treaty did not apply to the case, by reason the alienage of the claimant, which the treaty was not intended to obviate; of the previous confiscation of the subject, which anticipated the treaty; and of the act of compromise, by which Fairfax’s claim, if any rightful claim he had, was released. The other judge also entered into an examination of the treaty; differed from the first, in regard to the confiscation of the subject, and the meaning and operation of the treaty itself; but agreed, that its operation on the case, was avoided by the act of compromise. One judge, then, thought the treaty had no operation on the case, on account of matter precedent, matter intrinsic, and matter subsequent; the other on account of matter subsequent only: but both decided against its operation. Clearly, here was the construction of a treaty drawn in question; a claim set up under it; and a decision against that claim. Nor can it be material to the present question, why it was so decided, since it is the judgment itself, and not the reason of it, which an appellate court is to review.

1. If it should be objected, that the decision of this court was not against the validity of the treaty, and so no need for federal cognizance to interpose, to enforce the national engagement: I answer, there is ground enough for the appellate jurisdiction of the Supreme court, if the judgment of this court were against the claim set up under the treaty. 2. If it should be objected, that in this case it was held, that the treaty as inapplicable, so that it was not a case arising under the treaty: I say, the objection is founded on a petitio principii; for the whole question, in both courts, was, did the treaty apply or not? The objection presumes, that the Supreme court decided erroneously; but to decide erroneously, and to decide without competency, are different things. 3. If it should be objected, that the treaty came only incidentally into question, and formed but a part of the case: The opinions of this court demonstrate, on the contrary, that it came directly and judicially into question. The federal institutions can never form the whole of any judicial case; which must be one of individual rights and claims. To form a judicial case, under the constitution, laws, or treaties of the Union, there must be some fact, on which they may operate, as a commission, a grant, a contract, or the like. No one ever doubted, that the case of British debts, was a case under the treaty; yet the debt formed only part of the case. 4. If it should be objected, that this case was decided under the act of compromise of 1796, [cited supra] and so was a case under the law of Virginia, not under the treaty: With great deference to the judges, who decided the cause here, I must contend, that that act forms no part of the case. It appears not in the record; it is not even alluded to; it was impossible it should be, as the case occurred before the act was passed. It is a private act, in the strictest sense; such as in England must be pleaded. [1 Black. Comm. 85, 6. 2 Ibid. 344, 5, 6.] The law of Virginia, that private acts may be given in evidence without being specially pleaded, [1 Rev. Code, c. 76. § 80. p. 112.] merely dispenses with the pleading, but does not change their character as facts, so that the court can take notice of them, unless they are found on the record; and, if the court could properly take notice of this private act of assembly, the act of itself works no effect on the rights of either party. It is a contract; an executory, conditional contract; to be perfected by a deed of release, afterwards to be executed by the claimants under Lord Fairfax; and it is under that deed that Hunter must claim, if he chum under the compromise at all. Now, certainly, the deed is matter in pais, which must be found in the record, before the court can judicially take notice of it. Nay, if the act of compromise, and the deed of release executory thereof, had been part of the record; even then, it would have been a case within the appellate jurisdiction of the Supreme court; for it would still have been a question to be decided, whether the compromise embraced the case, or not; and if not, the old question would recur upon the construction of the treaty: for illustration of which, I again refer to the case of Smith v. Maryland.

I have only to add—in regard to the two cases, alluded to by Roane J. [1 Munf. 232.] as cases in which the claimants under Lord Fairfax, availed themselves of the act of compromise, to reverse judgments in favor of the commonwealth, in October 1798—that it is manifest, on examination, that the orders therein were entered by consent.

Williams, contra. I shall consider the question under two general heads:

1. Whether the words of the constitution give congress the power to vest by law in the Supreme court a jurisdiction, in this case, by way of appeal, or writ of error.

2. If they be sufficient to give such power, whether this case is in fact embraced by the 25th section of the Judicial Act, as it is generally called.

In considering the first question, I will consider as well the construction of the constitution, as the proper court to decide it; in reference to this court, or the court of the United States claiming the jurisdiction of revising its sentence.

The first point to be discussed is, which is the proper tribunal?—for, if it be true that the Supreme court of the United States is the tribunal, this court has nothing to do with the subject. This renders it necessary to define the nature and relative powers of the two governments.

The mandate directs this court to register the sentence of the Federal court reversing the judgment of this court, and to carry the judgment or sentence of that court into execution, or cause it to be done.

If this court, as is contended, has nothing to do with the question, but is bound to register the sentence, it is indeed, no more than a puppet to be played off by the Supreme court of the United States.

If, on the contrary, it is to act on the subject as a judicial tribunal, it must consider and see whether that court has the power to issue the mandate. If the Supreme court orders you to do an act not authorized, but plainly prohibited, by the constitution, it is your duty to refuse:—for you, as well as they, have taken an oath to support the constitution of the United States.

It is said, however, that the judicial power of the United States is by the constitution vested in their courts, and as that power involves the construction of the constitution and laws of the Union, the Supreme court alone has the authority to decide.

This is begging the question.

It is to decide upon state authority.—Suppose congress should pass a law giving an appeal from the State to the Federal court in every case;—the Supreme court should decide that it had jurisdiction under such law;—should thereupon, reverse a case upon contract between two citizens of Virginia decided here, and send a mandate to this court to register and carry into effect such sentence of reversal;—would this court be bound to obey it?—If that court alone is competent to decide upon the extent of its own jurisdiction, this court could not refuse;—and yet obedience to the mandate would be a direct infringement of the constitution! If on the contrary, this court would, in that case, have the right to refuse obedience, it must be because it possesses the right to examine the question.

It may be objected that the case supposed is an extreme one; and therefore, that the point in controversy should not be tried by it. It is equally fair, on my part, to try the question by an extreme case in relation to the Supreme court, as it was in Mr. Leigh to draw an opposite inference from the extreme case of a wilful violation of the constitution by the state judges.

But upon all constitutional questions, an extreme case is proper to try a subject by;—for the violation of the constitution must pre-suppose an assumption of power; and checks are established for the purpose of preventing it; and that construction which takes away the check is wrong. Now, if the Supreme court have no check but their own opinion, they may be guilty of this supposed extreme case; and so may the congress.

It is said that, to prevent this, the federal judges are liable to impeachment. So, I answer, are the state judges.

Prior to the adoption of the present constitution of the United States, the several states were sovereign and independent, and all administrative authority was vested in the state governments. When that instrument was adopted, the people distributed the administrative authority, or government, into two distinct branches, internal and external:—the former, with some few exceptions, they confided to the state sovereignty;—the latter to the general government. The portion allotted to the latter was for the purpose of a federative government. The people, however, anxious to limit the new jurisdiction, and to take from it constructive powers, declared that all powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Yet if the federal judiciary is alone to decide, in exclusion of state authority, it results in effect, that all the constructive power, intended to be prohibited, is in fact given. That cannot be the rule; but where the question is whether a case be proper for state authority, the state judiciary must necessarily decide.

But it is objected,—if this were to be tolerated, and the judiciaries of the states to decide, it would result in overturning all the objects of the framers of the constitution, and result in contradictory decisions; whereas, if the power of deciding be given to the federal judiciary, the decisions would be uniform. To prove this doctrine correct, as well in practice as theory, the second volume of The Federalist (letter 80, pages 303, 4, 5, 6.) is referred to. I deny the authority of that book. It was written by three persons to induce the people to yield to the general government certain powers: and their expositions of the constitution were merely their individual opinions. We know, too, that one of those individuals [Ed.: Madison] admitted in the Virginia convention, that the system was defective, and concurred in amendments which I shall presently notice.

These newspaper essays were party writings intended to induce a sentiment favourable to the ideas of the writers. But this same Federalist [vol. 2. p. 74.] tells us that in case the federal government should exercise powers not warranted by the constitution, and to the prejudice of an individual, the remedy is to be by application to that judiciary to which cognizance of the case properly belongs;—if to the injury of the state, then the state legislature is to sound the alarm:—thereby admitting, at any rate, a possible case of usurpation, and that the application for redress was to be, not to the federal judiciary only, but to that tribunal, whether state or federal, which had properly cognizance of the case.

Again, these letters were written prior to the adoption of the constitution, and laid down constructions of it which many considered as dangerous to the sovereignty of the states, and tending to introduce a consolidated government. The conventions, alarmed at that power which was limited only by vague and indefinite expressions, and warned—at least in Virginia—by some very great men, of the consequences of constructive powers, adopted the precaution of proposing amendments, which being adopted, cut up by the root the favourite idea of constructive powers, and with it many of the constructions put upon the constitution by the Federalist.

The rule, under the constitution, with the amendments, is that the powers delegated to the federal government are, in all cases, to receive the most strict construction the instrument will bear, where the rights of the states, or of the people, either collectively or individually, may be drawn in question. [Tuck. Bl. app. p. 154.] The form of the ratification by the convention of Virginia also shows their ideas upon the subject. [Ibid. app. p. 160.]

Having said so much of this new authority, and shown it was written upon a different system than the one now prevailing, I will leave the trio [Ed.: of Federalist writers] to their fate.

But my ideas are said to be calculated to overturn the great objects of the framers of the constitution.

What the constitution ought to be is not a proper argument to be addressed either to this or the United Statescourt—What it is, is the present inquiry. Constructive powers are prohibited:—those conferred must be express, before the federal judges can take cognizance; and the expediency of uniformity of decision will not give them the power, unless the constitution gives it.

I will agree with Mr. Leigh in one thing—that no country has produced a system like ours; and therefore analogies are not to be found.

As to the cases from England, they are upon positive regulations. As to Ireland, they are founded on the principle that the King’s Bench of England is the king’s own court, in which formerly he sat; and consequently, by the royal prerogative, that court, in the plenitude of its power, is considered as having the appellate power to reverse the decisions of the Supreme court of Ireland. As to the writ of error from parliament to Scotland, that was given by the act of 6 Ann., which established a court of Exchequer in Scotland. By the articles of union it was provided that the Scottish courts should remain; subject, nevertheless, to such regulations as should be made by the parliament of Great Britain.

I will not stop to inquire how far the decisions of the Supreme court upon this subject are to be the rule. If they are the sole judges, there is an end of the question.

But it is said, if you can refuse to register this mandate, so may the state executive disobey the president’s orders upon a call for militia.

By the terms of the constitution [art. 1. sect. 8.] congress has expressly the power to provide for calling forth the militia, to execute the laws of the union, suppress insurrections, and repel invasions.

The governor of a state is not called upon in a judicial character to do any act, but as a militia officer, and, if he refuses, is liable to punishment:—-but, if he will, he may refuse; taking upon himself the responsibility for so doing—in like manner as the president, upon his responsibility, may omit to call out the militia when he ought. But suppose the president to call out the militia, in time of peace, to be marched into a foreign state, would it not be competent for the state authority to refuse obedience?

Mr. Leigh says that congress may suspend the writ of habeas corpus, under certain restrictions; and, as to the propriety of the case, the United Statesjudiciary alone is competent to decide.

This is really begging the question:—it is taking that for granted which is to be proved. My idea is that, if a citizen of Virginia was confined improperly under such law, the state judiciary would have authority to release him.

He says, too, that where the power is lodged, there is the authority to decide.

This, again, brings us back to the inquiry, where the power does reside.

The state judges, he contends, may be carried away by their feelings. It is admitted, they may be so misled; but there is as much cause to apprehend that the judges of the courts of the United States will be so carried away as the state judges.

But, if I am right, the constitution must decide the true tribunal. The judicial power is defined by the constitution, art. 3.

This court is certainly not contemplated by that article, notwithstanding the great authority of Mr. Pendleton.

The judges of this court, as individuals, and, if Mr. Leigh chooses, as a court, sustain a two-fold political capacity—one in relation to the state—the other in relation to the United States. In the latter, the only measure of their power is afforded by the constitution; for all authority in the government of the United States is derived from that instrument. This is proved by the constitution, as it originally stood, and the amendments to it before noticed.

Now the third article declares that the judges there contemplated shall hold their office during good behaviour, and, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

By the second section of the second article, these judges, contemplated by the constitution, are to be appointed by the president, by and with the consent of the senate.

In addition to this, the General court of this commonwealth, at their last session (ten judges on the bench), determined that they had no right or authority to execute the criminal laws of congress, in the case of Feely.

I may then, I think, question the correctness of that great man, Mr. Pendleton’s authority, on this particular point.

This court, by the constitution, is to decide upon the laws of congress, not as a subordinate tribunal, but as the court in the last resort of a sovereign state.

The whole judicial power of the United States is confined to the Supreme court, and such inferior courts as congress may ordain and appoint.

I have already endeavoured to show that the state judiciary is no part of that system.

But it is said that our construction leads to civil discord, and therefore this court should extend the constitution, and thereby give the Supreme court the control, or, rather, should not inquire into the question, but blindly submit!—If the constitution does not authorize the exercise of the power, to attempt it is usurpation. The doctrine contended for, then, would go to prove that all usurpation must be submitted to, for fear of civil discord; and thus would change the whole character of the constitution, by conferring the general power on the United States, and applying the restrictive clauses to the state.

This is to make a new constitution—not support the old.

But the cases of British debts and payments into the treasury have been relied upon as proving that the federal courts have the authority now in question.

The jurisdiction which the federal courts have taken in those cases has been original, the plaintiffs being aliens,—and not appellate from the state courts.

The state courts have adopted their decisions on those points, not because the federal courts had appellate jurisdiction, but because they thought the principles properly decided—in the same manner as this court adopts a decision of a British court, when not authority.

But, says Mr. Leigh, if the courts of the United States have jurisdiction as original tribunals, there is no reason why they should not have it by appeal.

This might be a sound argument, if the people of America wished to give them the jurisdiction, to be addressed to the proper authorities to amend the constitution. But if the constitution does not now give it, this court is bound, by its duty to the state authority, to refuse it; for it has not the power to confer jurisdiction.

But “this court, in the case in 4 H. and M. 173, admitted the right of the defendant to remove his cause from the state court to the Circuit court of the United States.”

I answer that the jurisdiction exercised in that case was not appellate, but original. The cause was not removed into the Circuit court, on the ground that that court was superior to the state court. Whether it was right or wrong is unnecessary for me to inquire, as it has no bearing on this case.

It is objected that the judicial act of congress, as also the opinions of the Federalist, were contemporaneous expositions of the constitution; and this by the very framers of the instrument.

I admit that the judicial act may be said to be a legislative exposition of the constitution; but while it is entitled to respect as the opinion of the legislature, it certainly is not, on that account, to be implicitly obeyed by the judiciary. Soon after the adoption of the constitution, a law was passed, making it the duty of the judges on the circuit to examine pensioners, &c. That law the judiciary of the United States decided to be unconstitutional.

Besides, at the time the judicial act was passed, the amendments, which have excluded constructive powers, were no part of the constitution.

“Having parted with our sovereignty, we should part with our pride!”—Agreed!—so far as we have parted with our sovereignty; but that is the question.

II. The second point to be considered is, if congress have the power contended for, is this [is] a case within the provisions of the 25th section of the judicial act.

If it be such a case, it is admitted that it must appear so from the character and decision of the cause. The only questions which, under that act, can be re-examined by the Supreme court, are such as appear on the face of the record, and immediately respect the questions of validity or construction of the constitution, treaties, statutes, commissions, or authorities of the United States, in dispute in the cause.

Now the case before us was not decided upon any such point, but under the compromise. I will not inquire whether that compromise was properly before the court. This court settled the question, upon solemn argument; and it must be considered as properly settled, unless it be now competent for the court to reverse that decision.

If this be true, as it certainly is, the decision was not, in the language of the act, “against either the validity or construction of the treaty;” but upon a totally different point.

But it is contended that the treaty is part of the case agreed; and that, although this court should decide, or profess to decide upon a different point, yet as the treaty is found as a part of the case, the appeal lies; and that a contrary rule would put the federal judiciary in the power of the courts of the state. But, if the federal judges are authorized to hold jurisdiction, because the treaty is in the case, though not affected by the decision, it is to put the state judicatures completely in subordination to them.

The act of congress has declared the only case; and this is not that case. The federal court can hold jurisdiction upon that ground alone;—and although this court may have decided improperly under the compromise, it is not competent for that court to correct its error.

Wirt. The doubts of the court resolve themselves into two questions:

1st. Whether it appears by the record, that this case is one of those in which appellate jurisdiction is given to the Supreme court of the United States by the 25th section of the judicial act of congress.

2d. If it be, whether that section, itself, be constitutional.

As one of the counsel of Mr. Martin, in favour of whom the decision of the Supreme court of the United States has been pronounced, I hold the affirmative of both these questions, and claim the registration of the mandate: And I shall proceed to examine the questions in the order in which they have been presented by the court.

1. The 25th section provides, “that a final judgment or decree in any suit in the highest court of law or equity of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against the validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the construction of any clause of the constitution, or, of a treaty, or statute of, or commission held under the United States, and the decision is against the tide, right, privilege or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute, or commission, may be re-examined and reversed or affirmed in the Supreme court of the United States upon a writ of error, the citation being signed, &c.” “But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.” [Laws United States, vol. 1, p. 63. §25]

By this section it is clear that appellate jurisdiction is given to the Supreme court of the United States in three classes of cases touching treaties: to wit,

1. Where the validity of a treaty is drawn in question, and the decision is against its validity.

2. Where the validity of a state law is drawn in question on the ground of its being repugnant to a treaty; and the decision is in favour of the state law.

3. Where the construction of a treaty is drawn in question, and the decision is against the right set up, under the treaty.

Having thus ascertained the cases in which appellate jurisdiction is given to the Supreme court of the United States by the act in question, the only remaining inquiry under the first head, is whether the record before us presents either of these cases.

On inspecting the record, we find, that this was an action of ejectment brought by David Hunter against Denny Fairfax in the district court of Winchester, to recover a tract of land lying in that part of Virginia called the Northern Neck. The record presents a case agreed between the parties, and submits the law of the case so agreed to the judgment of the court. The facts agreed in behalf of Fairfax the defendant are, in substance these:

1. The title of Lord Fairfax, under whom the defendant claimed.

2. The devise of that title to the defendant by the last will and testament of Lord Fairfax, in 1781, and

3. The treaty of 1783 between Great Britain and the United States.

In favour of Hunter these facts were agreed:

1. That Denny Fairfax, the devisee of Lord Fairfax was an alien: a native subject of the king of Great Britain at the time of the devise and at the time of the trial.

2. The several laws of escheat and confiscation of the state of Virginia.

3. The several laws by which this state provided for granting, as waste and unappropriated, the ungranted lands in the Northern Neck, of which the lands in controversy were part.

4. The commonwealth’s grant of these lands to David Hunter, the plaintiff; and

5. The lease, entry, and ouster, in the declaration mentioned.

In settling the law upon this case, what was the court called to consider? In favour of the defendant they were called to consider these questions:

1. Had Lord Fairfax title?

2. Did that title pass to Denny Fairfax by the devise of his ancestor?

This last question divided itself into two others, namely,

1. Was the devise to Denny Fairfax ineffectual on the ground of his incompetency to hold, as an alien and subject of the British king; or

2. Was his title saved and covered by the treaty of peace of 1783.

In favour of Hunter the court were called upon by the case agreed to decide,

1. Whether the treaty of peace of 1783 could be construed as applying to this case; whether that treaty did not merely go to prevent future confiscations; and whether a previous confiscation had not been effected here?

2. Whether our act of assembly of 1782, confiscating the quit rents and subjecting the land to location, did not supply the place of an inquisition of escheat; withdraw the case from the operation of the treaty of 1783, and give validity to the ,grant to Hunter? or

8. If the act of ’82 did not effect a compleat escheat, whether the act of ’85 united with it, did not consummate the escheat, and, of course, the commonwealth’s grant to the plaintiff?

4. If the act of ’85 was to have any effect in the confiscation, was that act valid or not as being repugnant to the prior, treaty? was the treaty to give way to that act, or the act to the treaty?

These are the points on which any court, settling the controversy on the case agreed, would be, unavoidably, compelled to pass; and hence it is clear that all the three cases deduced From the 25th section of the judicial act of congress, as giving appellate power to the Supreme court, appears, by the record, to have arisen in the case at bar.

1. The validity of a treaty is drawn in question, for a posterior act of the state legislature, that of 1785 is relied upon as consummating a confiscation against the faith of that treaty, and the decision of this court was against the validity of that treaty, in this particular.

2. The validity of a state law, that of ’85, was drawn in question, as being repugnant to the treaty and the decision was in favour of the validity of the state law.

3. It is most clear that the construction of a treaty and its application to the case at bar, was drawn in question, and the decision of this court was against the right of Denny Fairfax, which was set up under that treaty.

This last is, in truth and substance, the whole and sole question raised by the record; for, on the one hand, Hunter did not deny,

1st. The tide of Lord Fairfax; nor

2nd. The devise to Denny Fairfax; nor

3d. The treaty of peace.

So on the other the defendant did not deny,

1. That a grant had issued from the commonwealth to Mr. Hunter, nor

2. That this grant had issued under the several laws of the state.

So that the very pivot of the controversy was the protection of the treaty on the one hand, and its non-application on the other. If the treaty, by a fair construction, covered the title of Denny Fairfax, his success was inevitable, for the rest of his tide was not controverted. If the treaty did not, by a fair construction, apply to the case, the success of Mr. Hunter was inevitable for the rest of his title was not questioned.

So that the clear and single question upon the record was, whether the treaty by a fair construction did apply to the case so as to shield the devise to Denny Fairfax and perfect his title. It is not possible for the human mind to imagine a route by which a court could arrive at the decision of the title, put in controversy by this record, without encountering and crossing and settling the construction of the treaty. I answer the question of the court therefore with confidence that this is a case in which it appears by the record, that the application and construction of a treaty were drawn in question, and in which the decision was against the title set up under the treaty.

Mr. Williams, however, objects that the mere finding of the treaty does not by any means prove that the decision turned on the treaty; for there are many other facts found besides the treaty, and he adds that if such a finding would of itself, give the Supreme court appellate jurisdiction, it would be easy to give such jurisdiction in every case—in a common action of assault and battery, for example, it would be only necessary to introduce a finding of the treaty of peace, and the appellate power of the Supreme court would, at once, attach upon the case.

My respect for Mr. Williams will lead me to give this objection a much graver answer than I think it merits; though such is the nature of the objection itself, that even the gravity of an answer becomes, in some degree, ludicrous. The objection proceeds from a misconception of the act of congress, and a misconception of our argument under it. We have never contended that the mere finding of a treaty in a case would, ipso facto, found the appellate jurisdiction of the Supreme court; on the contrary we have always said, and so says the act of congress, that the case itself must be of such a character as to draw in question and render inevitable, the application or construction of the treaty so found. Suppose, for example, in an action of detinue between two citizens for a horse; or in an action of ejectment between two citizens of the same state, both claiming under state grants, the carelessness or artifice of counsel should introduce into a special verdict setting out the titles, the strange and irrelevant fact of the British treaty: neither tide being set up under that treaty, nor in any manner connected with it, the question of its application or construction, could not possibly occur, but the decision of the court must, of necessity, stand wholly clear of it: hence in such a cause, the case put by the act of congress of a decision against a title set up under a treaty, could by no possibility arise. But is the case at bar a case of this character? Is the treaty of ’83 an irrelevant fact which has strayed into this cause without having any relationship with, or bearing upon it? No, sir: it is a fact intimately and indissolubly blended with the question of title: it is the very shield of Denny Fairfax, rendering him safe and invulnerable as long as he can stand behind it, and the sole question upon the record is, whether he can lawfully stand behind it. If Mr. Williams will reflect but a moment on the course which the mind of a judge must take to adjust this title on the case agreed, he will perceive how necessarily and inevitably the question of the application and construction of the treaty arose, and how utterly impossible it was to decide that title, without deciding also the question of the treaty.

For example: It was a question of title to lands. Either title in the absence of its rival, was good. The court, ‘therefore, was forced into a comparison of the tides. Either being perfect, by itself, the question must have arisen in the first place as to priority; because between titles equally complete in all other respects, that which is prior is best. In this comparison the title of the defendant must have had the advantage, because the tide of Lord Fairfax, under which he claimed, is shown by the case agreed to have been complete, previously to the year 1736, whereas that of the commonwealth, under which Hunter claimed, is shown by the case agreed not to have arisen until after the death of Lord Fairfax in 1781. The defendant thus having the advantage of priority in his favour, it remained to be inquired whether this prior title of Lord Fairfax had been regularly transmitted to him. It is agreed that Lord Fairfax died in ’81, a citizen of Virginia, seized of this perfect title, and that he devised the same to Denny Fairfax the defendant. If this devise were good and effectual to pass the tide to the defendant and cause it to abide in him, the deduction of title was complete, and Denny Fairfax occupied precisely the ground of his devisor, holding the prior and paramount title. In trying the efficacy of the devise, it was shown by the case agreed, that Lord Fairfax was competent as a devisor, and that the devise, in itself, was unexceptionable. The contest arose on the competency of the devisee. It was agreed that he was an alien, and therefore under the general law of the land, although competent to take lands by devise, incompetent to hold them; if then being an alien, he could hold at all, it must be on some ground which distinguished him from aliens at large, and the court were to look into the record to see if there were any thing therein which did so distinguish his case. The only facts on the record which could support such a distinction were these: 1. That he was a subject of the king of Great Britain. 2. The treaty of peace of ’83 which protected the titles of British subjects against future confiscations. Did the treaty apply to this case and provide for it, was the only remaining question? If it did, there was an end of the cause in his favour; if it did not, his title was gone and that of his adversary stood without a rival. Was then the treaty an erratic and irrelevant fact in this cause? Is it not apparent that it was the very point of collision between the parties, the very nodus of the controversy? I can conceive no mode of reasoning more simple and conclusive than this, to show that this is a case in which it appears, upon the face of the record, that the application and construction of a treaty, were drawn in question; and hence, that the cases put by Mr. Williams of a treaty irrelevantly found bear no resemblance to this case, and furnish no inference which can fairly apply to it.

To object that the treaty is not the only fact found in this case, but is merely one of several other findings, would be to require, by implication, a perfect absurdity; for it would be to require that, in order to bring a case within the act of congress, the treaty shall be the only fact that belongs to the cause. Now what sort of an individual controversy would that be, which should consist only of one fact, and that fact, too, a public treaty. The act of congress makes no such impossible and absurd requisition: it does not say that, in all cases in which a treaty shall be the only fact in the cause, the Supreme court shall have appellate jurisdiction; but that it shall have such jurisdiction in every case in which the application or construction of a treaty shall be drawn in question. The intention of the law certainly was, that, in all cases affecting a great national compact, and involving consequently the faith, honour, peace, and security of the whole nation, jurisdiction, in the last resort, should be given to the court of the nation. Hence every case, which draws in question the construction of a treaty, of how so many other facts that case may be composed, is equally within the intention and the language of the act of congress. But I have shown that, in this case, the treaty is a material link in the chain of the defendant’s title: it is that important link, which, passing over the bar of his alienage, connects him directly with the land in controversy. I have shown that it was wholly impossible for the court to trace the title spread upon the record, without noticing the treaty; without entering into an examination of the treaty, and deciding on its application; and hence that this is, emphatically, one of those cases in which it was the intention of congress, as it is their expression, to give appellate power to the court of the United States.

If the finding other facts, in addition to the treaty, would be sufficient to oust the jurisdiction of the supreme court, then they could take no jurisdiction at all, under the section of the law in question; because every controversy is, and must of necessity be, composed of other facts; it must be composed of the transactions of the suitors themselves, or of those under whom they claim their grants, wills, deeds, letters, contracts, &c. &c.; all of which are facts other than the treaty, and without which other facts no controversy can subsist at all. Hence it must be very clear that, if this objection prevail, the act of congress, in this particular, is at an end; it can produce no possible effect whatever; since it is impossible, in the nature of things, that any case can arise, on which the provision can be brought to operate.

It is objected by Mr. Williams, nevertheless, that the decision of this court did not turn on the treaty, but on the act of compromise of 1796; and this, he says, appears by Mr. Munford’s report of the case. By Mr. Munford’s report of the case! Is Mr. Munford’s report of the case a part of the records? If not, Mr. Williams evades, instead of answering the question put to us by the court. For the question propounded by the court, and propounded, too, by the act of congress, is, whether it appears, by the record, that the application and construction of a treaty were drawn in question. Now, what is the record? Certainly the cause as it came up, on paper, from the court below, and as it stood before this court for decision. The arguments of the counsel on that cause, and the arguments by which the court supported their decision, constitute very properly a part of Mr. Munford’s report, but certainly constitute no part of the record itself. The act of congress, we have seen, makes the record the sole criterion of jurisdiction in this case. The ground on which the Supreme court is to assume jurisdiction must appear upon the face of the record. To this single standard they are referred, and they can know nothing judicially of any other. Now, does the compromise, the alleged ground of this court’s decision, appear upon the face of the record? Is the fact of the compromise a part of the case agreed? It certainly is not; and that for the best of all reasons—because, at the time when this case was agreed the compromise did not exist at all. The case was agreed in 1793: the compromise did not take place until 1796; and it took place while the cause was standing in this court on the appeal. The compromise, therefore, did not and could not constitute a part of the record; and therefore cannot, with any propriety, enter into the consideration of the question of jurisdiction before as, which the law declares shall be tested by the record alone.

Mr. Williams says he will not stop to inquire whether the compromise entered properly into this court’s consideration of the subject or not. He will not stop to inquire! If a gentleman will not stop to inquire into that which forms the very point of inquiry, it seems to me (to borrow his own favourite phrase) that the gentleman must be in a most unreasonable hurry. Argument, on such terms, if not a very profitable, becomes, at least, a very cheap business; and has this farther advantage, too, that it requires but a small capital to set up trade. I, who have more leisure on my hands than Mr. Williams, will stop to inquire into this point; and I insist that the compromise could not, with any propriety, have entered into this court’s decision of this cause; and therefore I am bound, through respect to the court, to insist that it did not so enter into their decision.

To render this point clear, it is but necessary to remember that this court possesses not one atom of original jurisdiction. Its whole power is appellate, and appellate only. Being a court merely appellate, its sole function is to revise the judgments of inferior courts, and to decide upon their correctness. In doing this, you constantly take, and you must take the cause precisely as it stood before the court below. The correctness or incorrectness of the judgment below can only be fairly tested, by comparing it with the identical cause in which it was pronounced. If you vary the cause here, by introducing a new and important feature into it, you are no longer employed in examining the rectitude of the judgment below; for the cause which you are trying is not the cause in which the judgment below was pronounced. To reprove the judgment of the court below as erroneous, on the ground of a fact which did not belong to the cause, and did not even exist at the time, would be a bouleversement, an anachronism, a sort of judicial hypallage, of which it would be highly disrespectful to suppose this court capable. But to suppose that this court reversed the judgment of the District court of Winchester, as erroneous, on the ground of the compromise, which did not take place until several years after that judgment was pronounced, would present the very solecism which I have just mentioned. If the court, sir, did decide this cause on the ground of the compromise, they relied upon a fact which constituted no part of the record before them; they added a new and important fact to the cause, which changed it fundamentally in doing so; they exercised original jurisdiction, by passing sentence, for the first time, in a new case, and were not acting appellately, in regard to the judgment pronounced by the District court of Winchester. If they reversed the judgment of the District court as erroneous, it must have been because they thought that judgment erroneous at the time when it was pronounced: for if right at the time, it is impossible that it could have been rendered wrong at the time, merely by the force of a fact which occurred afterwards; and all that this court, acting as an appellate court, can say, is, whether the judgment was right or wrong, at the time when it was pronounced. We are bound, then, to believe that this court, moving in the orbit marked out for it by the laws of the commonwealth, and feeling that aversion to encroachment and usurpation which their very doubts in this case evince, confined themselves, in this cause, to the exercise of appellate power merely, by deciding the appeal upon the record, and did not assume to themselves original jurisdiction, by making a new case of it under the compromise.

It should here be remarked, that neither the judgment of the District court of Winchester, nor the judgment of reversal entered of record here, assign the reasons of those respective judgments. That of the District court is a general decision that the law, upon the case agreed, was for the defendant: that of this court is merely, that the judgment of the District court is erroneous; which is saying, in effect, that the law upon the case agreed was not for the defendant, but for the plaintiff: both judgments, therefore, take the case agreed as their common basis. How, then, can it be said that the judgment of this court did not rest on the basis which it assumes on the record. “The record,” we are told by the books, “cannot lie.” It cannot be contradicted; it cannot be falsified; much less shall any thing be presumed against it. How, then, are we authorized to make so bold a presumption as that proposed by Mr. Williams? a presumption which not only contradicts the record, but indecorously involves in it a usurpation of original power on the part of this court? But, above all, how could the Supreme court of the United States, who were called upon to take appellate jurisdiction in this case, and who were bound by the express injunctions of the act of congress to look to the record only, as the touchstone of their jurisdiction, have been warranted in declaring the jurisdiction, on a presumption not only contradicted by the record, but incompatible with the respect which was due to this court?

Should it, however, be asserted that this court did and could rightfully take notice of this compromise, not as matter of fact, but as matter of law, I ask with what propriety the compromise of a litigated claim can be considered as an act of legislation. No man would think of calling a contract of compromise between two individuals by such a name, nor of considering it in any other light than as a mere matter of fact; and is its character changed, because a state, by its legislature, is one of the contracting parties? Does that which is in its nature a contract cease to be a contract, on account of those who may be parties to it? Or is every act done by a state legislature necessarily an act of legislation? If so, all those resolutions of approbation and censure which our assembly is in the habit of passing on the measures of the general government are acts of legislation—every vote of thanks which they pass is a legislative act, and every sword which they present, as the reward of valour, becomes a law of the land!—a rule of civil conduct, prescribed by the supreme power of the state!

If you inspect the particular act in question, you find that it possesses every quality of a contract, without one feature of legislation. It begins by setting out the adversary claims of the commonwealth and of Denny Fairfax to the lands in the Northern Neck—the controversies pending, in different courts, on those titles—a proposition of compromise, made by a previous resolution of assembly to the devisees of lord Fairfax the acceptance of that proposition by the agent of those devisees, whose letter of acceptance is set out in totidem verbis— and concludes with providing that, upon the execution of a deed by Denny Fairfax, or those having title under him, or the said Thomas lord Fairfax, extinguishing, on behalf of this commonwealth, his or their tide to all lands lying within the Northern Neck, which, by the terms of the above recited proposal and agreement, he or they are bound to relinquish all claim, right, and tide of the commonwealth of Virginia in or to any lands lying in the said Northern Neck, which is, by the terms of the said proposal and agreement, to be relinquished, shall, from thenceforth, be extinguished, null, and void.” Does this act extinguish immediately the claim of the commonwealth? No: that extinguishment still depends on something to be afterwards done by the representatives of lord Fairfax, and which is made a condition precedent to the extinguishment of the commonwealth’s title. It is, then, not merely a compact, but an executory compact, too, dependant on an act, in pais, to be afterwards done by Fairfax, and until this act, in pais, should be done, it remained wholly inefficacious, operating neither on the one party nor the other.

But let us concede that this act of compromise shall be called not a mere matter of fact, but a private act of assembly, which is certainly the highest character to which it can pretend: would this have authorized the court of appeals to notice it on the appeal of Hunter against Fairfax? Yes, it may be said, because by the general law of the state private acts of assembly may be given in evidence without being pleaded.—But let us look a little more closely at this provision of our law. By the common law of England a private act of parliament must be pleaded, like any other matter of fact, or it cannot be used upon the trial; the effect of our law then is to alter this principle of the common law, and to permit a private act of assembly to be used at the trial, without having been previously pleaded—it may, says our law, be given in evidence. “When is evidence given? At the trial. Of what is evidence given? Of matters of fact. To whom is evidence given? To juries, the constitutional triers of fact. In reply then, to the position that this being a private act of assembly might have been given in evidence, the answer is, that it was not given in evidence: and it is too late to talk of giving evidence, when a cause is standing for judgment before a court of appeals, upon the record.

But let us admit that this process of reasoning, simple and conclusive as it appears to be, has no force in it, and that the court of appeals was nevertheless authorized to consider this act as a letter deposited with them for the purpose of settling all controversies arising under it. I ask of what avail this letter, considered in itself, could possibly have been, in settling or, in the remotest degree, affecting any controversy whatever. On the very face of this letter, its operation is expressly predicated on an act to be afterwards done on the part of Fairfax; for its provision is that upon the execution of a deed by Fairfax, the tide of the commonwealth should be extinguished. This letter, then, was to derive the inception of its power, from the deed to be afterwards executed by Fairfax; and since that deed was the express and essential pre-requisite to quicken it into life and motion, until that deed came, the letter was a dead letter; a caput mortuum merely. Admit, then, that the court of appeals could have looked at it: it would have decided nothing, unless they exercised a power which has been proven not to belong to them; of supplying or presuming the all-important fact that the deed contemplated by the act, had been executed by Fairfax; without which, I repeat it, the act itself, was mere brutum fulmen.

Hence, sir, I reach the conclusions that this compromise formed no part of the record; that it could not have been properly noticed by the court of appeals in revising the judgment of the district court of Winchester, that if noticed, it was calculated to produce no effect, without supplying a fact which the appellate court had no power to supply; and that therefore, the compromise is out of this controversy,

I admit, nevertheless, that according to Mr. Munford’s report of this cause the decision of this court did proceed on the compromise only; and I admit, also, that if Mr. Munford’s report be the record of the cause, it may be doubtful whether the Supreme court of the United States had jurisdiction of this case, on a ground which has not been yet noticed. The act of congress gives jurisdiction only where the decision of the court is against the right set up under the treaty. Now it appears by Mr. Munford’s report that the two judges who constituted the court of appeals in this cause, were divided in opinion as to the protection given by the treaty to Fairfax’s title: but a divided court of appeals, according to our laws, affirms the judgment of the court below; so that, so far as this court acted within its legitimate sphere, as a court of appeals, by restricting itself to the case on the record, the decision of this court was not against, but in favour of the right set up under the treaty; but though we rose by the record, we fell by the compromise, the judgment of this court being in fact, against us; and, hence, if it had been competent to the Supreme court of the United States, to have considered Mr. Munford’s report as part of the record, they might have been somewhat perplexed, between the decision in our favour, de jure, and the decision against us, de facto, to ascertain their jurisdiction; from this perplexity, however, they were relieved by the act of congress, which requiring them to look to the record and the record only, they saw there nothing but the right set up under the treaty, and the naked decision of this court against that right.

I had apprehended that Mr. Williams would have laid hold of this point, untenable and evanescent as it is; and have insisted that according to the report of the case it appears that the decision of this court was not against but in favour of the application of the treaty to the right set up under it. Had he done so, however, the answer would have been obvious. ” Sir, you change the terms of the question propounded to us by the court, and dictated to the court itself, by the act of congress; we are not asked whether it appears by the statements of the reporter that the decision of this court was against the application of the treaty to the right set up under it. But we are asked whether it appears by the record, that the decision of this court was against the right set up under the treaty. Again, sir, even if you look from the record to the reporter, although you find that the divided court decided in favour of the application of the treaty to the right set up under it, yet you find, also, that the court decided, finally against the right itself, which was set up under the treaty. It does not vary the case that their decision was on the ground of the compromise: it is not the less a decision against the right set up under the treaty; and such a decision as, Mr. Leigh has justly argued, equally founds the appellate jurisdiction of the Supreme court whatsoever the ground of the decision may have been. But the natural candor and dignity of Mr. Williams’ mind disdained an evasion of the question so poor and superficial, and I mention it now, rather to do just honour to him, than to dispel, by anticipation, any transient doubt, which might probably flit across the mind of the court, from this view of the subject.

But whatever may have been the ground on which the court of appeals who decided this cause placed their judgment, according to the evidence of the reporter, this court, which I have now the honour of addressing, must, like the Supreme court of the United States, decide the present question by the record only: and I hope it is by this time very clear that, tested by the record, comprehending the judgment of the court of’ appeals, this was a case in which the application and construction of a treaty were drawn in question; in which the decision of this court was against the right set up under that treaty, and in which, therefore, the jurisdiction assumed by the Supreme court of the United States was in strict consonance with the 25th section of the judicial act of congress.

I come now to the second question propounded by the court which is, “whether the power now exercised by the Superior court of the United States is justified by the constitution.” As the power now exercised by the Supreme court is in strict conformity with the 25th section of the judicial act of congress, I understand the question intended to be submitted to be whether that section itself be justified by the constitution; and it is in this light that Mr. Williams, whom I am answering, has considered and discussed it.

This, sir, is a question of such extreme delicacy, of such awful moment, and, withal, lies so wide of the ordinary track of forensic investigation in Virginia, that I feel much difficulty and reluctance in approaching it. It has not been, I think, until within the last year or two, that the constitutionality of an act of congress has been made a question, in any court of any grade, within this commonwealth. I mention it to the honour of the state; for I think it a proof that our courts have none of that baleful spirit of jealousy which would excite them to be prompt and forward in endangering the peace of the union, by raising needless contests for power with the general government. Other states, perhaps, envious of the pacific disposition, the good order, and general prosperity of our commonwealth, might be ready enough to impute to wounded pride, the refusal to register the mandate reversing your decree; but those who have the happiness to know the real temper of this court are perfectly satisfied that your honours would be much better pleased to find the law in question constitutional, than to be put to the painful necessity, from a high sense of duty, of interrupting the current of jurisprudence marked out by that law. It is under this impression of the sentiments of the court with regard to this question that I shall proceed to examine it, with the most unreserved freedom.

Whether the act of congress, which requires you to register the mandate, be justified by the constitution, is a question which cannot be decided without a clear understanding of the constitution, both as to the relations which it establishes between the state and federal governments, and the character of the particular appellate power now in question.

How is the constitution to be construed? What kind of instrument is it? It is a compact between the states, for the good of the whole, for which they have all paid the highest consideration; a portion of their national sovereignty: hence there results a reciprocal claim on each other, for the faithful observance of its provisions; considered as a compact, it is as a general rule, to be construed according to the intention of the parties, to be collected from the whole instrument; and each particular provision is to be construed so as to effectuate the purpose which they had in view. If this principle of construction be too constrained and technical for gentlemen, look at the origin of the instrument, and the pre-existent state of things which led to its adoption. We had articles of confederation—a rope of sand—a federal head without any power of coercion—a government carried on by the courtesy of the several states merely—an unshaped vessel, which nothing could have held together, during the war, but the common danger which pressed around us, equally, on all sides. On the return of peace and the establishment of our independence as a nation, those patriots who had had an opportunity of knowing at once the importance of union among the states, and the weakness of those ties by which that union was secured under the old system, projected the convention which led to our present government. It is an historical and undeniable fact that the present government grew out of the weakness of the old confederation, and was proposed as a remedy for that weakness. The design was to substitute coercion for requisition: and this it was impossible to effect without impairing to a certain extent the sovereignty of the several states; for a sovereign cannot be rightfully coerced; and by creating and submitting to this power of coercion, in the federal government, the states consent to yield their sovereignty over the subjects ceded, and in those respects to bow down to the sovereignty of the federal government. Hence it is merely idle and declamatory to talk in this case, about the prostration of the state sovereignties; since the states themselves, who were perfectly competent to it, have agreed to this prostration, in certain respects; and the only question is whether this be one of the respects in which they have so agreed to lower the flag of the state. It results, too, from this view of the subject that the federal constitution, being intended as a remedy for the defects of the old confederation and composed of powers made up of concessions from the state sovereignties, for certain purposes of general good, ought to be expounded remedially and benignly, in reference to the purposes for which it was expressly ordained. These purposes as announced in the preamble, are, “to form a more perfect union, to establish justice, to insure domestic tranquillity, to provide for the common defence—to promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” Every grant of power in the constitution has reference to the one or the other of these general objects; and hence in construing the grant, it is proper to look to the object for which it was made, and give it such a construction as will attain the object which the parties to the instrument had in view. Let me not be misunderstood, sir. My duty to my client does not require me to become the advocate of what has been called constructive power. But by constructive power what has been always understood? Nothing more than that a power shall not be drawn, by inference merely, either from the general expressions of the preamble or any other part of the constitution, that the power must be expressly granted: But it has never been contended that the details by which a granted power shall be carried into effect, must also be found in the constitution. The power once given, the modus operandi, it has always been conceded, is left wholly to congress. The constitution says, for example, that congress shall have power to lay and collect taxes, &c.; here the constitution stops on this subject—it does not proceed to limit congress either in the selection of the subjects of taxation, or in the rate of assessment, or in the mode of collection. The most rigorous interpreter of the constitution has never required more than that the general grant of the power in question shall be found upon the face of the constitution: nor has he ever denied that in examining the character of a granted power it was proper to look to the pre-existing evil which that grant was intended to remedy; nor to have reference to the purpose for which the grant was made, and to give it a construction commensurate with that purpose. These principles are so simple and so obviously just, that I should consider myself as insulting the understanding of the court, by attempting to render them more simple and obvious by argument.

I consider myself, then, as standing completely within the pale of those who have uniformly repelled all constructive powers under the constitution, when I assume as the premises from which I mean to deduce my argument, the following principles:

1. That the power claimed by any branch of the federal government, must be expressly given by the constitution and not drawn by implication from it.

2. That in considering a power thus expressly given, we are to take into view the character of that power, the evil which it was intended to remedy, and the purpose for which it was given.

3. That such an exercise of that power shall be allowed, as will remove the evil and accomplish the purpose.

4. That we are not to look for the details of that power and the mode of exercising it, in the constitution; all which are left to congress, under the general grant of power to carry into effect any power given to either branch of the general government.

I beg leave to submit an illustration of these principles: “congress shall have power to provide for calling forth the militia, to execute the laws of the union, suppress insurrections, and repel invasions.”

What was the pre-existing mischief which this grant of power was intended to remedy? It was, obviously, the inefficacy of those requisitions which alone could be made under the old confederation.

But the constitution, while it expressly grants to congress this power, to provide for calling forth the militia, does not affect to settle the details by which this power shall be exercised. The mode of providing for calling them forth, is left wholly to congress, without any restriction or limitation whatever.

The mode which they have adopted, is to authorize the president to call upon the executives of the several states, for their respective quotas of militia.

Now, would it be competent to the governor of any state to resist the call of the president on the ground that it was not expressly written in the constitution that the president shall have the power of issuing his mandate to the state executives, requiring them to call forth their quotas of militia—that this was an invasion of the sovereignties of the states—and hence that the act of congress affecting to give him that power was a violation of the constitution? If such an objection should be made, would not this answer be completely satisfactory—that this is one of the instances in which the states have ceded their sovereignty to the general government—that they had given up the sword for the general good—that they had given to congress the power (not themselves, to call forth the militia, but) to provide for calling them forth—that as to the mode of the provision, the states, who were the parties to the compact, had left it to congress, without explanation or qualification, and thereby had promised submission to the means which congress in their wisdom, should devise—that to talk of placing a restriction now, by the contumacy of any one state, on this power, left open and unlimited by the constitution, would be, to claim for a single state, the right of amending the constitution at pleasure, and, therefore, would be a direct infraction of the amendatory provision of the constitution itself? Could any candid and reasonable man resist the force of such an answer? Would Virginia resist it? Has she resisted it? Has a governor of Virginia ever refused to yield obedience to the mandate of the president, under the notion that by doing so, he prostrated the sovereignty of the state? And yet the executive of the state is a co-ordinate body with the judiciary of the state—a body no less dignified—and, upon this notion of a separate state sovereignty, wielding a portion of that sovereignty, certainly not of less importance than that which belongs to the state judiciary. Like the judiciary, too, the governor holds his commission from the state; he is responsible to the state alone, and moves in a sphere as distinct from that of the president, as the state judiciary does from that of the federal government. The connexion between the state and federal executives, and the dependence of the former upon the latter, in the instance under consideration, does not proceed from any direct proposition in the constitution, that this connexion and dependence shall exist: but it results inevitably from that express and unqualified grant of power which the states have made to congress, of providing the means of calling forth the militia; and that promise, which every grant of power implies, of submitting to the means which shall be devised.

Now, sir, let us proceed from this illustration to the case at bar. According to the third article and second section of the constitution, ” the judicial power of the United States shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.’

Is this a constructive grant of power to the judiciary of the United States? Is it not, on the contrary, express and imperative, in the strongest terms? Is there a power given to any other branch of the federal government, in terms more direct, more clear and strong? Observe—it is not said that the judicial power of the United States may extend, but that it shall extend, to all cases arising under treaties. What shall be the mode in which it shall be extended, is not, indeed, defined in the constitution, any more than it is defined what shall be the means which congress shall provide for calling forth the militia. Such a definition would go beyond the object of a constitution, which is to fix fundamental principles, and not to adjust details. But the mode of extending this judicial power of the United States is given to congress; for to congress is given the power “to make all laws which shall be necessary and proper for carrying into execution all powers vested by the constitution in any department of the government of the United States.” Now, sir, let it be observed—here is an express power given to the judicial department of the United States, overall cases arising under treaties—and express power given to congress to make all laws necessary and proper to carry this judicial power into execution. There is nothing constructive here, sir: it is all express and positive. Let it be further observed, that on this grant of power to congress to extend the judicial power of the United States to all cases arising under treaties, there is no restriction whatever, except that the laws which they pass for this purpose shall be necessary and proper to the end; that is, necessary to extend the judicial power to all such cases, and suited to the purpose of so extending it; for the word proper in this place, can, in the said construction mean nothing else than appropriateadapted to the purpose. Any other interpretation of the word would render the clause vague and indeterminate, and would be a cavil utterly unworthy of the dignity and solemnity of this inquiry.

Seeing, then, sir, that it is, in express terms, declared that the judicial power of the United States shall extend to all cases arising under treaties, we have only to ask whether this be a case arising under a treaty? But I have endeavoured to show already that it is such a case; and if I have succeeded in that attempt, the question of this court is answered; for the power now exercised by the court of the United States is justified by the constitution: they have simply exercised jurisdiction over a cause, to which the constitution has expressly declared that their power shall extend.

In order to understand the character of this power still more clearly, let us ask what is its purpose—why was it granted to the federal judiciary? It was, sir, because it was a natural and necessary concomitant of another grant of power to another department of that government. I mean the power of making treaties. If it was proper that the power of making treaties should belong to the general government, to whom should belong the power of construing them? If the national government is to possess the power of pledging the faith, the honour, the interests of the whole nation by a treaty, to what court will you confide the guardianship of that pledge, but to the court of the nation? The grant of this treaty—construing power to the national court, was one in which the whole nation was interested, and on which the whole had an equal right to insist; for upon the sound construction and faithful observance of public treaties the rights and the peace of the whole nation was staked: each, therefore, had a right to a voice in the constitution of the tribunal to which the interpretation of our treaties should be confided. This, sir, is no new and visionary idea: it is as old, at least, as Aristotle, and is marked with all the depth and accuracy of his mode of thinking. This is the principle which he gives us:—That all political and public causes should be determined by judges chosen from the people at large, is agreeable to the nature of democracy.” [See Aristotle’s Politics, book 6. chap. 16.] I ask you this question, sir, and I put it to the serious consideration of the court:—would the states have been satisfied with transferring this important branch of judicial power (the construction of foreign treaties) to any one state, or to the states respectively? Would Virginia, for example, have been willing to confide her faith, her honour, her peace, her vital interests, to the guardianship of a court of Massachusetts? Would she surrender to another state the sovereign power of construing her own treaties, and of enforcing them, according to such construction? Would she yield to the courts of any state the lights of war and peace, as related to herself—for such are the consequences growing out of a false and injurious construction of foreign treaties? If Virginia would not repose this confidence in a court of Massachusetts, shall she expect that Massachusetts will repose it in her? But here is the constitution, the social compact, by which Virginia has agreed that the construction of treaties shall belong to the courts of the nation: by adopting the constitution, she has expressly agreed that the judicial power of the United States shall extend to all cases involving the construction of a treaty of the United States. Will it not be a violation of this compact to say that the judicial power of the United States shall not extend to such a case? Will it not be saying this, to deny the extension of this power to the case at bar—and insisting that the adjudication of this court on a treaty case shall be final? Will the other states rest satisfied with this course? Will they not complain: of this infraction of the federal compact? Will they not say—and will they not have some colour for saying,—at least in this instance,—we confided this power to the courts of the United States—and behold it usurped by the all-grasping ambition of Virginia?

But it is said that, however clear and express the provision of the constitution may be, that the judicial power of the United States shall extend to this class of cases, yet the mode of extending it, by appeal, which congress has adopted, is clearly unconstitutional. How so? Where is the provision of the constitution with which this law clashes? It is merely provided, that the laws which they shall pass, to carry a given power into effect, shall be necessary and proper to that purpose. Let us inquire, then, in the first place, whether the law they have passed be not necessary to the purpose?

It is alleged that the state courts have at least concurrent original power over treaty cases; there being nothing in the constitution which denies such a power to them, in the first instance; but, on the contrary, the sixth article of the constitution, contemplating such a power, the proposition is granted. A suit, then, involving the construction of a treaty, is commenced, and properly commenced in a state court: here is a constitutional case—a case to which it is expressly said the judicial power of the United States shall extend. Now, in what form, less exceptionable, can congress extend this power, than by permitting the case to pass to the highest court of the United States, and giving the party who claims under the treaty a right of appeal, if the decision shall be against his right? To extend the judicial power of the United States to a case regularly commenced in a state court, it is not only necessary, but indispensably necessary, that the cause should be taken from the state court to the federal, either during its progress, or at its termination in the courts of the state. No other possible mode exists. Congress has adopted both modes, in regard to the several constitutional cases. Now, will it be said, that the first mode, that of removing a cause in its progress, is more constitutional than the last? That congress might correctly remove the cause, during its progress; but not at its close? I ask what possible objection can apply to the last mode, which is not equally applicable to the first. As to the notion, that the appeal, with its consequences, is an invasion of the sovereignty of the state courts, I ask whether wresting a cause from their jurisdiction, in its progress, against the will of the plaintiff, and against their own will, be not also an invasion of this imaginary sovereignty? A citizen of Virginia applies to a court of his state for redress against an alien: the alien appears, and demands the removal of the cause to the bar of the federal court: the citizen insists, and rightly insists, that the jurisdiction of the court has attached to the cause: he claims the continuance and protection of that jurisdiction. What shall the court do? Must it, per force, resign the cause to another, and a distinct tribunal; a cause, too, upon which its jurisdiction had rightly attached? If it must do so, what becomes of its sovereignty? What! one sovereign court compelled to surrender a cause of which it rightfully had possession, to another court, not more sovereign than itself! And yet, according to the argument I am answering, it must do so! It must not merely connive, and passively permit the defendant himself to remove the cause—though this would be a sufficient surrender of its sovereignty—but it must take notice of his demands—it must take an active part in the surrender of its own sovereignty—it must make an order for the removal of the cause; which order is entered upon its records; and this very court, in fact, did so, in the case of Brown v. Crippen and Wise, from the eastern shore. What was this judgment but, in effect, an admission that, in cases confided by the constitution to the peculiar cognizance of the courts of the nation, for great public purposes, the sovereignty of the state courts was out of the question, a mere topic of idle and illusory declamation?

It is objected that we misconstrue this provision of the constitution which directs that the judicial power of the United States shall extend to all cases arising under treaties; for it is said that this second section of the third article is not to be considered by itself, but to be read in connexion with the first section of that article; that the first section declares that the judicial power shall be vested in one Supreme, and in such inferior courts as congress may, from time to time, ordain and appoint; and that the second section does no more than to point out the subjects on which that judicial power, so vested shall be exercised; that the judicial power residing in the courts of the United States shall extend to all cases arising under treaties, &c. And what, I ask, has congress done more than to extend this judicial power to the cases enumerated? When they direct that a constitutional cause may be removed, in its progress, from a state court into a court of the United States, or that it be removed, revised and corrected, after its decision in the state courts, by the Supreme court of the United States, what do they do more than to extend the judicial power of the United States to those cases to which the constitution of the United States imperatively says that it shall extend. If the objection mean that the courts of the United States are by the constitution erected into a distinct and separate system, and therefore cannot touch the state courts, at any point, nor interfere with a cause which has been drawn within their jurisdiction, I answer, in the first place, that the objection is fatal to the jurisdiction claimed for the state courts, on this class of subjects; for if the judicial power of the United States shall extend, in some shape or other, either originally or appellately, to every case belonging to the class; and if the courts of the United States cannot touch a case, once brought within the jurisdiction of a state court; it follows, of necessity, that the state courts cannot touch one of these cases, without defeating, in every such instance, this provision of the constitution; for, according to the argument, every case brought into the state courts, is taken for ever from those courts, whose jurisdiction, the constitution expressly says, shall extend to it. And if this be true, there is no way by which the purpose of the constitution can be satisfied, but by denying to the state courts all jurisdiction over the whole class of constitutional cases. I answer, in the next place, that it is not true that the courts of the United States cannot touch a case, once brought before a court of the state; as has been conceded by this court, in the case before cited of Crlppen and Wise.

It is insisted, however, that the giving jurisdiction to the federal courts over these cases, does, by no means, exclude the concurrent jurisdiction of the state courts. But it is very clear that both the terms and the reason of the grant, certainly exclude the final jurisdiction of the state courts. For how can the judicial power of the United States extend to all cases arising under treaties, if the state courts decide finally all cases brought before them? It will depend upon the choice of the plaintiffs, whose partiality for the courts of their own state will always lead them to give them the preference, whether this provision of the constitution shall not be wholly abortive. For if plaintiffs choose to institute all such suits in the courts of their respective states, then the jurisdiction of the United States, instead of extending to all such cases, will extend to none of them. Will this satisfy the terms of the grant’ Much less will it satisfy the purpose; for what was the obvious purpose? Was it not to place the just construction and faithful observance of treaties, for which all the states were equally responsible, under the care of those courts which all the states had a voice in composing. And what, I ask, becomes of this purpose, this great national object, under the final jurisdiction claimed for the several states over those subjects? What uniformity of decision can be expected from such a course? You have eighteen different state tribunals, placing eighteen different constructions on the same article of the same treaty; not only differing among themselves, but differing from the construction of the national tribunal, in regard to the same article! For if the power of the state courts be sovereign over these subjects, a decision of the Supreme court of the United States will have no binding authority on them! They will not be found to conform to it. And they will not conform to it. Under this disorganized, disjointed, jarring and clashing chaos of jurisprudence, what becomes of the consistency, the dignity, the honour, the good faith of our country! What becomes of the peace of the United States! In one state, the rights of a foreign subject, claiming under a treaty between his government and ours, may be respected; in a second it may be mutilated; in a third trodden in the dust! What security will a foreign nation have in treating with such a country? What foreign nation will treat with us? What foreign nation that has treated with us, will tolerate such an inconsistent and abusive construction of her treaties?

But let us examine, a little more attentively, the objection made to the propriety of this law, that the courts of the United States form a distinct and separate system from the courts of the states; and hence that the idea of appealing from the one to the other is a juridical solecism; that an appeal from one court to another implies that the court appealed from, and the court appealed to, form parts of the same system; which is not true of the courts in question; since the state and federal courts have no common head; deriving their commissions from different powers, and owing their respective responsibilities to different authorities.

The first remark which I shall make on this objection is, that the postulatum on which it is built is borrowed from a government wholly dissimilar to ours; and therefore, however true, in relation to that government, becomes, when applied to us, fallacious. Our notions of jurisprudence are borrowed from the British government. That government is, comparatively, simple and homogeneous. The king is the fountain of all office and honour: the courts of that country all derive their commissions from, and owe their responsibility to him. Hence the regular gradation of those courts, and the unity and coherence of the system. Accustomed to the contemplation of that system, and to seeing the appeal rise there in regular sucession, from the lowest to the highest court, we are shocked, and are apt to imagine that there is something inherently absurd and preposterous in any course of appeal, which shall break the beautiful regularity of an ascending appeal, through the same system. But, sir, it would be puerile and visionary, to transfer these speculations to our government, and attempt to apply them in practice here. Our federal government, so far from possessing the simplicity and unity of the British system, bears no resemblance to it whatever, but, as it has been justly remarked, is one entirely sui generis. In some aspects, it is a government of the people of all the United States, in a consolidated view; in others it is a government of the states by the states; and to increase the complexity, there is a separate government of each state by itself. Now, it is admitted that the governments of the several states, prior to the adoption of the federal government, were separate and independent, and formed each a system by itself. But when the people resolved on a government of coercion for the whole United States, the powers of which government could only be composed of concessions from the several state sovereignties, was there any thing preposterous in declaring that, in relation to the powers specifically ceded, the governments of the several states should be subordinate to the general government? Nay, sir, could such a consequence be avoided? Is it not just as impossible to establish a government of coercion over several states, without impairing, in some degree, the state sovereignties, as it is to establish a government of coercion over individuals, without impairing, in some degree, the rights of those individuals, as they existed in a state of nature? I go a step further: Would there be any thing inherently absurd and preposterous in the people of these states having it in view to establish a general government, to connect, in some points, the governments ai the several states, with the general government, not only f rendering the former subordinate to the latter, in these points, but declaring, also, that they should be auxiliary to the general government, in carrying into effect the ceded powers? Is this connexion of the governments at all more absurd than the connexion of the several states in one government? Is there not a striking practical illustration of this in the acknowledged right of the president, under the law of congress, to call on the governors of the states for their quotas of militia, in the cases put by the constitution? Is not the state executive, in this respect, made not only subordinate to the federal executive, but also made auxiliary to the federal executive, in carrying into effect that portion of the state sovereignty which has been ceded away. Is not the state executive, quoad hoc, made a part of the system of the federal executive? I do not say that his commission is changed—that he is made a federal officer; but that his duty to his own state, which forms a part of the federal union, and his oath of office to support the constitution of the United States, requires him to yield obedience to that government to which the sovereignty over this subject has been yielded by the constitution. I ask if it was not .fully competent to the people, the fountain of all power, to produce this partial connexion, dependence, and subordination of the several branches of the state government to the corresponding branches of the general government? And if they might do it at their pleasure, it is in vain to say, that, by doing so, they would depart from the symmetry of the British or any other government. The truth is, that our whole government is a departure from the British, and every other government on earth. We have done as we had a right to do— composed a government for ourselves—struck out a new plan of our own, without copying any existing model—and it is therefore idle and delusive to apply ideal analogies, drawn from any other model, to the construction of our own.

If it be conceded that the sovereign people might, if they chose, have produced a dependence and subordination of the several departments of the state governments to the corresponding departments of the federal government, the only remaining inquiry is, have they done so? I have shown that they have done so, in the case of the executive department. Have they in the case of the judiciary? I think it equally clear that they have; for by declaring that the judicial power of the United States shall extend to all the enumerated cases, they have, in effect, declared that the state judiciaries shall not finally take away any one of the enumerated cases from the federal courts—the federal courts are, therefore, placed on commanding ground over all these cases; they have a right to insist that all these cases shall be ultimately submitted to their adjudication. For it is utterly impossible to execute this article of the constitution, according either to its letter or its spirit, without bringing all these questions to the ultimate decision of the courts of the nation. In regard to these questions, therefore, a subordination of the state to the federal courts, is clearly produced—and subordination ex vi termini implies connexion. It is a connexion, indeed, partial, confined to the cases enumerated in the constitution; but, as to these, a clear connexion and subordination, declared by the voice of the sovereign people. Where, then, is the absurdity of an appeal? To ground an appeal from court to court, it is not necessary that these courts shall, in all respects,—as to their commissions and responsibilities, for example,—be parts of the same system. To ground an appeal, it is enough that the court appealed from should hold a subordinate jurisdiction over the subject, in relation to the court appealed to. Even in Great Britain, it is not the identity of commission and responsibility which gives the appeal; it is the grades, the subordination of the courts, in relation to each other, and in relation to the subject of the appeal. So that the same basis of appeal over the subjects specified in the constitution, exists here which exists in England.

Sir, it is very strange that this absurdity which makes so splendid a figure in our declamations, should never have occurred either to the statesmen who had a principal hand in forming the constitution—nor to the sages of Virginia who adopted it—nor to the patriots who composed the first congress and by whom the law in question was enacted. So far were they from deprecating the concurrence of jurisdiction between the state and federal governments, with a final right of appeal to the latter, that they all united in expressing, in the warmest and strongest terms, their hopes that such a system would be adopted in carrying this article into effect: so far from apprehending that the pride of the states would take fire at such a course, it was one of the favourite arguments by which they sought to allure the people to a ratification of the instrument. Mr. Leigh has already cited several passages of the Federalist to this effect: but Mr. Williams puts aside the authority of the Federalist with a high and indignant hand—”it is a party work,” he says,” written merely to persuade the people to adopt the constitution.” It is not for me to pronounce the eulogy of that work—who they were that wrote it—how eminent in point of abilities—and what their opportunities of understanding the true design and meaning of the constitution, is well known to this court. I cannot help remarking, however, that if the construction for which we contend, be in truth, so extremely odious, offensive and shocking, it is a little strange that those gentlemen, admitting them to have common sense, should have urged this very construction, ad captandum! Sir, it was the favourite construction of that day—and it has remained, I will not say for the superior sagacity, but for the superior jealousy of these times, to espy any thing dangerous or repulsive in it. That it was the popular doctrine of that day, the debates of the Virginia convention abound with proofs. Some of these have been already cited, and I beg leave to add to them the opinion of Mr. Madison, then a leading member of the convention. And first with regard to the propriety and necessity of referring treaty questions to the ultimate decision of the national court: “With regard to a treaty, there is a public propriety in the judiciary expounding them. These may invoke us in controversies with foreign nations. It is necessary, therefore, that they should be determined in the courts of the general government. These are strong reasons why there should be a supreme court to decide such disputes. If in any case uniformity be necessary it must be in the exposition of treaties. The establishment of one revisionary, superintending power can alone secure such uniformity.” [Debates of the Virginia convention page 378.] And on the subject of vesting jurisdiction over certain federal subjects, in the state courts, with the right, of course, of an appeal, he expresses his hope and his conviction that this will be done, for the convenience of the American people, supporting this provision by an analogous regulation under the old articles of confederation. If you will turn, sir, to the debates in congress when this judiciary bill was under consideration, you will find how consentaneous, and universal, and ardent this desire was in even’ quarter of the union, that the local tribunals should exercise original jurisdiction over these subjects with the right of appeal to the courts of the nation. I refer you to the 2d volume of Lloyd’s Debates of Congress from page 264 to page 376. I do not quote these debates to prove that congress had the right to do what they did, but to prove the strong and general conviction and feeling of the day as to the expediency and propriety of this appellate power which is now thought so obnoxious. I consider all this as a contemporaneous exposition; and I consider the acquiescence of the people under the operation of this law for five and twenty years, as expressing their approbation of the construction from which it flowed.

One further consideration, sir, and I have done—an appeal has been made to your pride by the counsel who preceded me. You have been asked whether it comports with the dignity of this court, the highest of a sovereign state, to be obliged to register the mandate of another tribunal, and, that considered in regard to us, a foreign tribunal; and to carry that mandate into effect against your own conviction of the right of the case. Why, sir, if the constitution, which you are sworn to support, connects you with that tribunal in this instance, and gives them a controlling power over you, so far as regards the particular case, where is the degradation of submitting to a superiority thus established? The several governors of Virginia have not felt themselves degraded in executing the mandates of the president of the United States, nor do I believe their fellow citizens have considered them as degraded by the cheerfulness, promptitude and vigour with which they have carried those mandates into effect. Had they from a false pride, refused, had they hesitated, I believe that they would have been hurled from their seats at the next election. In executing the mandate of the Supreme court in this instance, you do no more, sir, than to yield to the constitution of the United States. That constitution by an express grant, extends the judicial power of the United States to all cases arising under treaties. It gives to congress, by an express grant, thi power of making all laws necessary and proper to carry this judicial grant into effect. Upon the admission, warranted by the second clause of the sixth article of the- constitution, that the state courts have original jurisdiction of treaty causes, it was not possible for congress to extend the judicial power of the United States to cases commenced in the state courts but either during their progress in those courts, or at their termination—either mode in reference to the sovereignty of the state courts, was equally exceptionable or equally proper, while the one or the other was indispensably necessary. Congress, consulting the convenience of the people, has adopted both those modes of reference in the several cases to which they were required to extend the judicial power of the United States by the constitution. The law by which they have sought to execute this judicial grant was, therefore, necessary to the purpose of the constitution and suited to the accomplishment of that purpose—and being necessary, was proper in every sense of the word. Congress, then, have done nothing more in this instance than to pass a law necessary and proper to carry into execution a power expressly granted by the constitution, and hence I have no difficulty in answering the question of the court, ” that the twenty-fifth section of the judicial act is warranted by the constitution of the United States.”

Nicholas, attorney general of Virginia, as amicus curia, delivered his sentiments on this subject to the following effect:

The question I mean to consider, is, whether a writ of error may, constitutionally, lie from the Supreme court of the United States, to this court? in other words, is the judicial act of congress, in this respect, constitutional?

Before I proceed to the main question, I will notice some preliminary points.

It has been said, that the objection now made to this appellate jurisdiction of the Supreme court of the United States, is unseasonable, the act of congress having been in operation ever since the year 1789, without doubt or dispute concerning its validity. But this consideration can weigh very little: no length of time can sanction the act, if it be unconstitutional. The question has never before been raised, and therefore never considered, much less adjudicated, in the courts of this commonwealth who are now to decide for themselves.

It was also insisted, that the controlling power now proposed to be exercised by the Supreme court, has been sanctioned by the decisions of that court. I answer, that the exercise of unconstitutional powers does not confer the right to exercise them. Besides, in neither of the cases, that have been cited, was the point made or discussed; and, therefore, cannot be considered as decided; as this court very justly held, when it decided that it had no criminal jurisdiction, although such jurisdiction had been often before unwarily entertained.

Contemporaneous expositions of the constitution have also been called in aid; the first of which is that contained in the judicial act itself. But I can never admit the authority of this kind of exposition of the constitution; it might go the length of nullifying the constitution altogether. There are some similar contemporaneous expositions of that instrument, which we have the authority of the Supreme court of the United States itself, to disregard; and others, which the judgment of this whole people has condemned and exploded.

As to the book called The Federalist, it is utterly unsafe to resort to it for contemporaneous expositions of the constitution; because, whatever be its merits, it is the work of professed partisans of that system, before its adoption, to render it palatable to the people. It is an eulogium on the system, a vindication of it against popular objections; it is not, nor was it intended to be, an impartial exposition of its meaning and effect.

In discussing the constitutionality of the judicial act of congress, in respect to the appellate jurisdiction, which it authorizes the Supreme court to exercise over the supreme state courts, it is proper,—as has been said,—to consider the genius and character of the constitution.

The states were originally sovereign, on the dissolution of the British government. Virginia, in particular, assumed the attributes of sovereignty, and declared herself independent before the United States did. [See the Constitution and Bill of Rlights of Virginia, bearing date the 29th June 1776; and 1 Tuck. Bl. 89.] She then, with the other states, entered into a confederation, and that confederation expressly recognised the independence and sovereignty of each. [Sect. 2.] In the subsequent formation of the new government, the state sovereignties were retained, except so far as the rights of sovereignty were granted away. [1 Tuck. Bl. 175.]

But it is said to be wonderful that the portion of state authority now in controversy should be contended for; and it is asked, when the states have parted with the more splendid attributes of sovereignty, why contend about this, which, comparatively, is unimportant? The parting with some of the attributes of sovereignty makes the remainder more dear and valuable.

It has been said that the constitution ought to be considered as a remedial instrument, and great liberality allowed in its construction. This position is in conflict with the theory of our political system, in which the federal government has no powers, but such as are expressly granted, or necessary and proper to carry those which are specified into effect. This resulted from the nature of the government, being a delegation of specified powers, and all others being retained by the states. But the twelfth amendment to the constitution removes all doubts on the subject by declaring this in terms.

I proceed now to the constitution itself. By the first section of the third article, the judicial power of the United States is confined to “the Supreme court, and such other courts as the congress may, from time to time, ordain and establish;” which, evidently, can be no other than the courts of the United States. “The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” This clause is inconsistent with the idea, that the state judges, whose tenure of office depends on the regulations contained in the state constitutions, can be considered as judges of the federal courts, or that congress can transfer to the state courts, the exercise of the judicial powers of the United States.

The congress has not this power; 1st. because the judicial is a portion of the sovereign power; and that of the states was retained by them, no control over the state judicatures being given to the United States by the constitution. [See 1 Tuck. Bl. 178.]

2. There is no connexion between the federal and state judiciaries: they are not parts of one whole.

3. The judges respectively hold, or may hold, by different tenures; they hold under different commissions, and take different oaths. The consequence then would be, if the state judges could exercise the judicial power of the United States, that, though the constitution defines the tenure of those by whom it is to be administered, it might be administered by judges not holding during good behaviour, but at the will of the state legislatures.

4. Such a construction might go to destroy the independency of the state courts, or their connexion with, and amenabilily to the states. Their independence might be destroyed, and their utility also; for congress might heap burthens upon them too oppressive to be borne without increase of compensation. And if congress can compensate them for such additional duties, then, though the constitution of the state declares that their salaries shall be fixed, they would be made to fluctuate according to the will of congress. Besides, it is the policy of the states to prevent state-officers, from being inverted with federal offices or emoluments. [1. Rev. Code p. 40. 392.]

5. Upon the supposition that federal jurisdiction may be conferred on the state courts, a question presents itself: If a state judge should violate his duty to congress, how is he to be tried? Not by the state laws; for his offence is not against the state. Not by the federal laws; for the power of impeachment is confined by the constitution to federal officers. [See sect. 4. article 2.] But, suppose he could be convicted under the constitution, would that incapacitate him as a state judge?

These difficulties show the inconvenience which would result from such contradictory and conflicting duties.

In the case of Diggs and Keith, v. Wolcott, [4 Cranch 179] it was decided, that a court of the United States cannot enjoin proceedings in a state court, and, in Feeley’s case, [Holmes and Brockenborough’s Reports) the general court of this commomwealth, eight judges being present, unanimously decided that congress cannot confer on the state courts federal jurisdiction. It follows from parity of reason, that the federal courts cannot exercise appellate jurisdiction over the state courts; because the judicial power being confined to the courts of the United States, the appellate power must be confined to deciding appeals from one of those courts to another. The very essence of appellate power is to examine the decision of an inferior court of the same government, and not of a different, and, in this respect, independent government. Before an appeal would lie, it must be proved that the decision appealed from was an exercise of a portion of the judicial power of the United States. But congress cannot enable a state court to exercise any portion of the judicial power of the federal government. Therefore such appeal does not lie.

But, on the other side, it is said that the argument of the Federalist is unanswerable. I proceed to examine it.

In the second vol. p. 245, No. 82, the writer says an appeal from the state to the federal courts would certainly lie, But this being mere assertion, it might be sufficient to deny it. In the latitude contended for the passage referred to, the right of appeal to the supreme court, from the state courts, is asserted to exist, in all cases of concurrent jurisdiction. This would give to the pretension of the federal courts, a much more alarming sweep, than the construction now contended for, claims for them, or than the act of congress sets up. The Federalist next alleges, that the appellate jurisdiction given to the Supreme court, is “without a single expression to confine its operation to the inferior federal courts; the objects of the appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the state tribunals.” It would appear that in the opinion of the Federalist, because there were no express words, limiting the appellate power to inferior federal courts, it would of necessity extend to state courts. This reasoning is certainly incorrect. When the framers of the government were organizing a judiciary system, after using terms that confine the federal judicial power to the courts of the United States, they then speak of the appellate power of the Supreme court. Every one must understand them to mean a power to be exercised, within their system of courts; nor would it require words of exclusion to prevent the federal courts extending their jurisdiction to the courts of another sovereignty, which in no part of the constitution are spoken of, as constituting a part of the federal judicial system. So far from requiring negative words to prevent an invasion of the state courts, it would require strong and express terms to induce a belief, that a measure was contemplated, so inconsistent with the general character of the government. Without any express restriction on the federal judiciary, I contend, that the limitation on it, to appellate jurisdiction over the federal courts, results from the nature of the government. By the organization of the federal judiciary, large judicial powers were left with the states. All, not given exclusively, to the general government, were retained. The provisions on the subject, in the constitution, are affirmative merely, and by no means excluding the state courts, from the jurisdictions conferred by their own governments. It would seem difficult to reconcile the declaration “that the objects of appeal, not the tribunals from which it is to be made, are alone contemplated” in the clause about appellate power, with the attempt, from the generality of the terms conferring this very power, to include the state courts within its scope. As to the argument drawn from expediency, used by the Federalist, when he states, that either the appellate power over the state courts, must reside in the federal courts, “or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the union, may be eluded at the pleasure of every plaintiff, or prosecutor;” it is to be remarked, in the first place, that arguments from expediency, are not admissible to prove the existence of a constitutional power, unless it be previously shown, that there is some clause in the constitution, which by a fair construction, would include that power, or unless the power claimed be necessary, and proper to enforce a delegated authority. As to the idea of excluding the state courts from concurrent jurisdiction, such a pretension has never been seriously set up, and such jurisdiction is admitted by the Federalist himself. And as to the danger of eluding the judiciary authority of the union, foreigners or citizens of other states, where plaintiffs, can choose their court, and where defendants, can transfer the causes from the state, to the federal courts, under the act of congress.

But it is urged that it is essential to the peace and safety of the United States, that such a power as is contended for, should be vested in the federal court. The right of the state courts to an independency on any other government, as to the decision of causes, heard and determined by them, is not a novel, or arrogant pretension. It is a right exercised by all nations; the rule being universal, that questions must be decided by the local laws and local tribunals, where the party is found, or the real estate is situated. [Vattel, book 2. ch. 3. § 103.] As to the danger of war, it is not recollected that wars have proceeded from the supposed incorrectness in the decisions of municipal courts. To make war for such a cause would violate the principle of national laws, which has just been referred to. The United States have suffered as much, or more than any other nation, from the injustice and rapacity of foreign judicatures, but never made it the ground of war.

The Federalist proceeds—”The national and state systems are to be regarded as one whole.” This position, as applied to the federal and state courts, is denied to be correct. Let the passage in the constitution be referred to, which makes the state courts a part of the federal judicial system. So far from there being any provision to countenance the idea, the federal system is expressly declared to consist of a Supreme court, and such other courts as congress shall from time to time ordain and establish. To show that the state courts are a part of the federal system, it is necessary to prove that they are ordained and established by congress. As well might it be said, that the courts of England and France are so ordained and established. The arguments in the passage succeeding the one just quoted, by which the writer attempts to prove that the state courts are auxiliaries, or rather satellites, of the federal tribunals, and that all causes in the enumerated instances of federal jurisdiction, must receive their original or final decision in the courts of the United States, being founded on the theory of a supposed unity of system in federal and state judicatories, must be of no avail, unless that theory can he supported.

But it is said that two concurrent jurisdictions, both final, is a monster in jurisprudence. Such a jurisdiction is exercised every day. Two men shall go to Baltimore or Philadelphia, buy goods, and give their notes: one is sued in the federal, and the other in the state courts; judgment is obtained in each; appeals taken to the Supreme courts of either government, and the decisions of both are conclusive.

The Federalist, in the concluding part of the number under consideration, pushes the construction he contends for to a still greater extreme than that already considered, and insists on the right of congress to give appellate jurisdiction to the inferior tribunals of the United States, over the decisions of the state courts: so that, according to this doctrine, the lowest court which congress could establish might control the decisions of the Supreme courts of the states. This consequence, so derogatory to the rights and sovereignty of the states, so inconsistent with the principles of a just jurisprudence, is supported by the same clause of the constitution (as the Federalist contends) which authorizes an appeal to the Supreme court. I mean the clause, vesting the judicial power in one Supreme court, and such other courts as congress may, from time to time, ordain and establish.

It would appear to me to follow, from the view I have taken of the subject, as congress has no right, under the constitution, to transfer to the state courts any portion of the judicial power of the United States, that this court cannot legally comply with the requisition or mandate of the Supreme court to register its decree, and enforce the execution thereof; which appears to me to be plainly a demand upon this court to exercise a portion of that judicial power, which by the constitution is vested in the Supreme court, and such inferior courts as congress shall ordain and establish. Before there should be a compliance with the requisition of the Supreme court, it ought to be proved that this court is ordained and established by congress.

It is contended by the gentlemen who advocate the jurisdiction of the Supreme court, that if the power of awarding a writ of error to the state courts, from the federal tribunals, be decided to be constitutional, the provision which enables a defendant to remove a cause to the courts of the United States, is equally so. If this consequence would result, it would not prove the power of the Supreme court, in the present instance. All that could be said would be, that both provisions are equally nugatory; and that it is not incumbent on those who contend against the jurisdiction of the court of the United States, in one case, to establish it in another. But it seems to me that the two provisions stand on essentially different ground. In the one case, all that congress say is, that in particular instances, coming within the acknowledged limits of federal jurisdiction, the state courts shall cease to act. They are not called upon to exercise federal jurisdiction, but to abstain from acting, in a case where cognizance is given, by the policy of the constitution, to the United States’ tribunals. In the case now under discussion, the power attributed to the Supreme court is, to force a state court from its proper orbit, and to place it within the sphere of a system, of which it constitutes no part, and to which, by the terms of the constitution, it is foreign.

Another objection to the power contended for is, that the act of congress is not just or equal in its operation. If a decision is on one side, an appeal lies; but if on the other, it is conclusive. One object of the constitution was to establish justice. Can it be said to attain this end, when the conclusiveness of a judicial sentence is made to depend, not on its conformity to the principles of law or equity, but to the side of the question which the court happens to approve?

The cases referred to on the other side do not appear to be applicable. Olmstead’s case was that of a decision of the federal court, acting within its appropriate sphere, and triumphing over an improper opposition from state authorities. Nor can the respect which has been paid to the decisions of the federal courts, by those of the states, in treaty questions, particularly in those which related to the payment of British debt, be considered as a recognition of the right, in the courts of the United States, to exercise the appellate power claimed for them. It only proves the existence of a comity between those courts, which the public good requires, should always subsist; and that the state courts feel—as I trust they always will—great deference and respect for the decisions of able and enlightened men, particularly in relation to questions which depend on the construction of the laws of the United States, or treaties made under their authority.

The government of the United States, viewed as a national government, instituted for general objects, but operating on states, which retain their individual sovereignties, must be considered peculiar in its organization. No exact parallel is to be found in the ancient confederacies, or those of more modern times. This will afford an answer to any analogies which are supposed to exist between the courts in England, awarding writs of error, to the courts of the dependencies on that country, and a similar power exercised by the Supreme court, to those of the states. Though the ultimate resort from the courts of Ireland is to those of England,—the court of King’s Bench warding writs of error to the King’s Bench in Ireland, and an appeal lying from the Irish court of Chancery to the house of lords—yet it will be seen, by reference to the writers on English jurisprudence, that this appellate power in the English courts is founded on the acknowledged inferiority and dependence of Ireland on the crown of England; which dependence is not marked out by a particular charter, limiting its extent, but is general in its nature, and in a great degree regulated by expediency, in its application. [See 1 Blac. 104.] The same observations apply to the other colonies and dependencies on the British crown. But, surely, these examples are inapplicable to our case, where the authority of the head of the confederacy is specially defined; where all power, not given, is retained, and where the state sovereignties are admitted to exist; unless, indeed, it can be shown that the authority claimed is embraced by the charter, transferring to the general government a portion of the powers originally vested in the states and the people. It has already been attempted to be demonstrated, that nothing in the constitution impairs the independency of the state judiciaries, and that Congress has no power to employ them as vehicles to administer the laws of the union.

Hay, as amicus curia:. The questions which I propose to discuss, are these: 1. Is the 25th section of the judicial act, which .gives to the Supreme court of the United States an appellative jurisdiction, in certain cases decided in the Supreme court of a state, authorized by the constitution of the United States? 2. If this section be not so authorized, can this court undertake to declare it unconstitutional; or does the right to make this declaration in this case, and in all cases affecting the jurisdiction of the Supreme court of the United States, belong, exclusively to that court?

Before I engage in the discussion of the first question, to which my attention will be principally directed, I will submit a few remarks not yet presented to the court, which possibly may contribute to make straight the way, leading to the ground about to be explored.

There is a radical difference between a state government and that of the United States. The first possesses a general, the latter a special power of legislation. A state government possesses a right to legislate on all subjects, those only excepted, on which it is forbidden to act. The government of the United States, on the other hand, possesses no power to legislate, except on those subjects on which it is expressly empowered to act.

The inference from the proposition just stated, is, that when the validity of a state law is denied, he who makes this denial, must prove that it is forbidden by the constitution of the state, or that of the United States. But when a law of the United States is brought into question, it must be proved to be made in conformity to the federal constitution.

This inference applies directly to the case before the court. A claim of appellate jurisdiction over this court, is made in behalf of the Supreme court of the United States, and the 25th section before mentioned, is exhibited as the foundation of the claim. I require proof that the constitution of the United States gave to congress power to pass this law. The onus probandi lies on my opponents; it is not enough for them to create a doubt upon the subject; as long as there is doubt, the claim cannot be allowed; they must prove that the law is warranted by the constitution of the United States. But I am content to relinquish this point, and am willing to concede, what in strictness cannot be required, that every law passed by the congress of the United States and approved by the president, ought, not only in the courts of the United States, but in this court and in all courts, to be presumed to be warranted by the constitution of the United States. Under this concession, it is incumbent on me to prove that the law in question is not so warranted. This task I undertake to perform, not by subtle and technical disquisition, not by means of that sort of special pleading, which after being almost driven from the law, has lately found refuge in politics; but by a fair, rational, candid, and I may add, a liberal interpretation of the constitution.

The court, I trust, will not deem it improper in me to remark, that in advocating this doctrine, I am not delivering with a view to suit my own argument, an opinion recently formed, the result of reflections since the commencement of this discussion; but an opinion, adopted and maintained several years past, after mature deliberation. I am now travelling through a country, which I have frequently explored.—Some of the judges of this court, perhaps all, will distinctly understand me.

I will submit another preliminary remark. The great and fatal defect of the old confederation, was, that the exercise of its most important powers, depended on the co-operation of the state governments. Instead of raising men for the defence of the nation and money to supply the public wants by its own authority, acting directly and immediately on the people, it was compelled to rely on requisitions addressed to the legislatures of the states.

The object of the new confederation was to remedy this defect, by making the powers of the general government, entirely independent of the state governments, and by applying them, without the concurrence of any intermediate authority, directly to the people. It is believed, that this policy has been uniformly maintained throughout the constitution. Not a single instance is recollected in which the effect of a power, granted to the general government, is left to depend on the consent or co-operation of the states. But the construction of the constitution, now contended for by the appellee’s counsel, in giving to the Supreme court of the United States an appellate jurisdiction over the Supreme court of a state, produces an anomaly in our system, which it is difficult to believe could have been intended. If the state court will not suffer its record to be sent up, or refuses to register the edict of reversal, a collision, against which the government is in all other cases effectually secured, is unquestionably produced.

A third preliminary remark, may not be unworthy of attention.

Great stress has been laid on the fact, that the law in question was adopted by many of the men who formed the constitution; and the inference is, that they must have understood the meaning and spirit of the constitution, which they had themselves contributed to establish. This reasoning is repelled by many considerations, cogent, if not conclusive.

The judges of this court are bound by oath to maintain the constitution, as the paramount law of this land. In the performance of this high and sacred duty, they must exercise their own judgment. They must pronounce their own opinions. It would be sacrilege to surrender them. The opinions and reasoning of other men, especially of those who were called by the people to form a constitution, and then to legislate under it, are certainly entitled to the most respectful and serious consideration; but to no more. The presumption, it is admitted, is, that they are right; but however obvious or strong the presumption may be, it is still a presumption only; and of course may be repelled by evidence and argument of greater force. The propriety of this reasoning is supposed to be completely evinced by the fact, that the 13th section of this very law, so far as it gives original jurisdiction to the Supreme court, has been declared by the Supreme court of the United States to be not warranted by the constitution, and therefore void. 1 Cranch, p. 138.

From the congressional debates of September, 1789, when this law was passed, it does not appear, that the question now agitated in this court, was ever presented to view. This law, therefore, cannot, even if any law could, be regarded as an authoritative exposition of the constitution. It is at most a dictum only, and certainly ought not to be regarded as of higher authority than a dictum, in which all the judges of this court might concur. What is due to such a dictum we all know. In the case of Bedinger vs. the commonwealth, this court solemnly decided, that the jurisdiction in certain criminal cases, which they had exercised for years without question, did not belong to them.

In September, 1789, the congress of the United States had great and essential duties to perform. In the course of a single session they had, among other things, to provide for the organization of the government; for its support, by a revenue to be immediately raised; for the establishment of the judicial tribunals; and for the distribution and execution of the judicial powers of the United States, criminal as well as civil. In the pressure of business thus thrown upon them, it ought not to be a matter of wonder or even of regret, if, in one or two instances, they failed to measure with perfect accuracy, the power which they exercised, by that standard, by which all they did was to be regulated.

The force of the argument under review is diminished, if not destroyed, by that great principle, which in the state constitutions, as well as in the constitution of the United States, keeps the legislative, executive and judiciary departments entirely distinct. Those who made the great law, the constitution, are not, according to this fundamental principle, to be deemed its best expounders.

There is yet another remark on this point, which I will take leave to suggest.—The political party, to which the majority of the first congress belonged, or at least, many of that party, then entertained, and soon afterwards openly avowed the doctrine, that constitutionality and expedience were convertible terms. Congress, it was said, might constitutionally pass any law, which they might think calculated to secure or promote any of those objects, which are stated in the preamble, as the causes for ordaining and establishing the constitution of the United States. This heresy, though not dead, is at present asleep; and certainly it is not improper to say, that those who had thus wandered from the true faith, ought not to be regarded as orthodox expounders of our constitution. On this point I will submit one more remark.—There is no temerity in saying that the constitution is now better understood, than it was in 1789. It would be indeed strange, if such were not the fact. We have had 25 years to examine it in detail, and to observe its practical operation. This idea is very distinctly intimated in the 2d volume of the Federalist, page 243. To that volume the court is referred, and will not therefore be troubled with my observations on the aubject.

There is, however, one fact, affording so striking an illustration of the truth of the remark just made, that I will take leave to state it. Mr. Pendleton, whose name ought never to be mentioned without the reverence due to virtue and to talents, and who was uniformly devoted to the service of his country; Mr. Pendeleton, who presided so long and so ably in this court, and who was selected by the distinguished citizens who constituted our state convention, to preside over their deliberations, even Mr. P. is represented as saying, and no doubt did say, in speaking of the future judiciary of the United States, that the first experiment probably would be to vest in the State courts the inferior federal jurisdiction.” (Virginia Debates, p. 367.)—The judicial power of the United States is, by the express terms of the constitution, vested “in a Superior court and in such inferior tribunals as congress might, from time to time, ordain and establish”—and yet, according to this idea it might, by law, be vested in courts, not only not so ordained and established, but ordained and established by another government, and responsible to that other government alone. I am not, however, surprised at this opinion, erroneous as I am sure it is. The mind of this venerable man, profoundly occupied with the great question then under discussion before the nation, on the fate of which much,—who can say how much?—of its liberty and prosperity depended, could not dwell on those insulated points, which we have now leisure to examine under all their aspects and in all their relations.

Taking the constitution then, thus understood, as our guide, we will examine those two classes, by which the 25th sect, of the judicial law is said to be completely justified.

Mr. Wirt is under some doubt as to the principle of construction, which ought to be applied to the constitution. He is at a loss to decide whether the constitution ought to be regarded as a compact or a statute, and seems to think that the rule of construction would vary according to the character of the instrument. Be it so.—But I will not stop to engage in this inquiry, nor enter into a detail showing in what parts the constitution of the United States ought to be considered as statutory or conventional. In relation to the present question, and in relation to the most important questions that have occurred, or can occur, it is neither the one, nor the other, but a grant of power—a grant of power by the people, for their own benefit only—not to any individual, or class of individuals, but to those among themselves whom they may think proper to select from generation to generation, for the administration of their national concerns. In this view of the subject, it is manifest that it would be idle to resort to any of those technical rules of construction, which relate to grants between individuals. The difference between this case and ordinary cases, is obvious and essential. In the latter there are two parties; neither of whom has a right to decide. The law therefore must decide for them. But in this case, there are not two parties.—In other countries, indeed, the governors and the governed form two classes distinct from each other in situation, feeling and interest. But here our constitution recognises no party but the people; and they who are called on to ascertain its meaning, ought to decide according to the real and obvious intention of those who are the source of all legitimate power—who gave and can take away—who created and can destroy.

But Mr. Wirt himself has repeatedly conceded the proposition, that no power ought to be exercised, but that which is expressly given, or is necessary to carry a given power into effect. After this concession Mt. W. might have spared himself the trouble, of searching further for the true principle of construction. He has granted all that the most rigid expounder of the constitution can require. He has conceded the very point contended for in the first preliminary remark addressed by me to the court—the point so clearly stated and so ably supported in the report of the committee of the legislature of Virginia, in the year 1799, in reply to the answer of the legislature of Massachusetts, to the resolutions of the preceding session. This report is so well known, and a knowledge of the principles which it inculcates so widely diffused, that it would be a waste of time, to go through the process, by which the proposition conceded by Mr. W. is demonstrated to be true.

This being our mutual understanding on this point, we both proceed to apply it to those claims of the constitution on which the present question depends.

The first clause relied on, is the first paragraph of the 2d sect, of the 3d. art. which is in these words:—”The judicial power shall extend to all cases in law and equity, arising under this ‘constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects.”

From these words, Mr. W. contends that congress have a right to extend the judicial power of the United States, to all the specified cases, according to their discretion. On this subject he advances a position, which I am not disposed to controvert. He advances as a position universally true, that where a power is given to congress, the mode of exercising that power is left to their discretion; and he illustrates his argument by putting a case, where a power is expressly given to congress—to provide for calling out the militia, which power he conceives, is to be exercised in the mode which they may deem most expedient. Without stopping to inquire whether many illustrations rather more opposite might not have been drawn from the constitution, I am ready to concede every thing which the argument requires.

Now it will be remembered, that on this very part of the subject, Mr. Wirt spoke with all his usual eloquence, and more than his usual confidence. He seemed suspicious that his opponents would shrink from this part of the inquiry. He therefore called peremptorily for a refutation of this argument, and challenged his adversaries to attempt it.

I accept this challenge, and offer, without hesitation, the following refutation:—His proposition is, that where a power is given to congress, they may exercise it in the mode which they deem best. This I have already conceded—but the concession is utterly worthless and unavailing to Mr. W. unless he can show, that there has been on this very subject, a delegation of power to congress. Unless he does this, he does nothing. He does not bring his case within the operation of the rule, about which we are both agreed. Now the fact is, that in that part of the section now under consideration, there is no grant of legislative power. In the order of debate, this obvious point has been entirely overlooked. If instead of the words really used, the constitution had said, “Congress shall have power to extend the judicial power of the United States,” to the cases enumerated, there would have been some plausibility, perhaps force, in the argument, if the question turned on that clause only. But the constitution does not speak this language. The language really spoken, is essentially different; so far from amounting to a grant of legislative power, the mode of exercising which might be discretionary, like that of calling out the militia; it is a grant of judicial power only, which congress cannot touch. It constitutes a grant and definition of judicial power, incorporated in the federal government, over which congress has no control. They can no more alter this constitutional definition of judicial jurisdiction or power, than they can alter the constitutional definition of treason—a project once set on foot, but speedily abandoned.

The doctrine then for which I contend is simply thin; that although it be true, that where power is given to congress to do a particular act, such, for instance, as borrowing money on the credit of the United States, the means of effecting this object, are entirely at their discretion, it does not follow, and is not true, that where no legislative power is given, where on the contrary, the constitution has itself defined the cases to which the judicial power of the United States shall extend, congress have any right to prescribe the mode in which it shall be extended.

It is certain that congress are not expressly authorized by the constitution to prescribe the mode, in which the judicial power of the United States, shall be extended to cases of federal cognizance—and it is equally clear, that the power ascribed to them by the argument of Mr. W. is not necessary to carry any power existing under the constitution into effect. If this be true, the discussion upon Mr. Wirt’s own principles is at an end.

To ascertain whether this be true or not, let us see how the judicial power will stand on the constitution alone, without this legislative power in congress.

The true meaning of the recited clause is, that the courts of the United States shall have cognizance of certain cases, not exclusive, but concurrent with the courts of the several states. It has never yet been contended, that the words “the judicial power of the United States shall extend” &c. gave to the federal courts, exclusive jurisdiction. The state courts had jurisdiction before. But for the federal government, that jurisdiction would have been necessarily exclusive. When, therefore, the constitution used the words before mentioned, it would mean no more than this: that certain classes of cases which before its adoption, must of necessity have been brought into the state courts, might be brought before the federal tribunals.—If brought there, the courts had jurisdiction over them by the express words of the constitution. But if they should be brought in the state courts, whose jurisdiction was anterior to the existence of the constitution, and entirely independent of it afterwards, they would be rightly in court, and might be finally decided. The jurisdiction, then, of the federal and state tribunals being concurrent, that is, standing on equal ground, each claiming to decide what is brought before it, and claiming no more, it is manifest that the words and meaning of the constitution are satisfied, if every case stated in the constitution can be originated in the federal courts; and it is equally clear that there can be no necessity for any sort of legislative interposition on the subject. The judicial power of the United States does not extend, in the proper sense of that word, that is, concurrently with the judicial power of the states, without the aid of the legislature, to all the enumerated cases.

But it may be said, that there is another argument, of a similar aspect, on this subject, which it may be more difficult to repel. It may be presented in this form. The constitution declares, that. “the judicial power of the United States shall extend” to certain cases; and the 8th section of the first article, expressly authorizes congress to pass not only all laws necessary and proper, to carry into execution the foregoing powers; that is, the powers expressly granted to that body, but “all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.” Congress, therefore, it may be said, have a right under this clause, to make a law for the purpose of extending this judicial power of the United States, to every class of the enumerated cases, although without the aid of such law, they would be inaccessible by federal jurisdiction.

I regret that in answering this argument, I am obliged to touch in my progress, at a point, not indicated in the invitation given by the court. It cannot, however, in this part of our journey through the cause, be easily avoided.

Now, let it be observed, that there are only two classes of cases, which are not within the reach of the federal tribunals, without the aid of a law; two only, that is, cases depending before, and cases decided by a state tribunal. All other cases of federal cognizance, are within reach of the judicial power of the United States, by the help of the constitution only. These two classes of cases, are to be placed there by law. Does not this fact, the necessity of passing a law to operate especially on them, show distinctly that they ought to have been left untouched? If the power of the constitution itself announced in these high terms, “the judicial power of the United States shall extend” does not bring these cases before the federal judiciary, can a law effect it? Can a law give jurisdiction where the constitution cannot?

The proposition that the federal and state tribunals, have a concurrent jurisdiction, in relation to the enumerated cases, never having been denied, will be assumed to be true. Now, in my humble opinion, as already expressed, concurrence implies, on this subject, equality: that is, that each court shall entertain jurisdiction of the cases originated before it, and this is its meaning in relation to the concurrent jurisdiction of the federal courts. Cases brought before them, are never removed into the state courts. Cases decided by them, are finally decided. But, it seems that a little more is meant. In relation to the federal courts, it further means, that they may take cognizance of causes, removed from a state tribunal before trial, or revise them afterwards by appeal. It is not, moreover, apparent, that the same reasoning, which justifies the extension of the judicial power of the United States, to these cases, in this way, would justify its extension in any way, and give to congress a power to transfer by law, every case of federal cognizance, brought before a state tribunal, within the pale of the federal jurisdiction. According to the doctrine advanced by Mr. Wirt, as to the discretion of congress in selecting the mode of effecting an object, such would inevitably be the result.

But let us examine this point more minutely. “The judicial power of the United States shall extend,” &c. Now, admit that congress have a right, under the 8th section, to make a law for the purpose of carrying into effect the judicial power of the United States. Let them have this power, and to what does it amount? The judicial power of the United States, is by the constitution, concurrent with that of the states, and so it must remain. But, this argument goes to show, that it may be exclusive and supreme.

A further remark on this point is submitted. The argument here controverted supposes that congress have a right to extend the judicial power of the United States to all cases in the enumerated classes, though depending before, or decided by a state tribunal. Thus, these words—”the judicial power of the United States shall extend” &c. mean that congress shall have power to pass laws for the removal into the tribunals of the United States, of causes depending before a state tribunal, and to give to the former an appellate jurisdiction over the latter. That a power, so delicate in its character, and so important in its effect, should have been intended to be conveyed in this covered, subterraneous way, it is impossible to believe.

It may also, with propriety, be said that the constitution of the United States, when speaking of the cases to which the judicial power shall extend, must be considered as referring to existing cases. Now, cases decided cannot be regarded as existing cases. The original case is merged in the decision. A. bond, on which a judgment is obtained, is swallowed up by the judgment.

It is, however, unnecessary to press this point more. According to my view of the subject, every argument founded on the clause of the constitution now reviewed, is irrelevant. The question before this court is, whether the Supreme court of the United States has appellate power over this court, the Supreme court of a state? Now this question is decided by a different clause of the constitution, by which the original, as well as appellate jurisdiction of the Supreme court is completely defined; and if, from a fair exposition, it appears that the Supreme court has not constitutionally appellate jurisdiction over the state tribunals, it is manifestly a waste of time to engage in a regular refutation of arguments, introduced to prove that congress will bestow it.

This brings us to the second ground taken by the counsel for the appellee. They say that the second paragraph of the second section of the third article of the constitution of the United States, in these words—”In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be party, the Supreme court shall have original jurisdiction; in all the other cases before mentioned, the Supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make,”—gives to the Supreme court of the United States an appellate jurisdiction over the tribunals of a state, as well as over the inferior tribunals of the United States.

Various considerations present themselves at once, in opposition to this doctrine. They shall be briefly stated.

1. The object of the constitution, in this clause, is obviously to designate the cases in which, and not the courts over which the Supreme court shall have appellate jurisdiction. There is not a word said about courts.

2. The power now claimed is of a character both delicate and peculiar: the first, because it is to be exercised by a department of one government over a department of another; and peculiar, because, as was before remarked, it introduces an anomaly into our system, which it was very easy to avoid. Now, is it to be believed that a power of this kind, if really intended to be given, would have been left to depend on conjecture or inference? This cannot be believed: on the contrary, the evidence to be collected from the constitution itself proves, that if this power had been intended to be conferred on the Supreme court of the United States, the terms used would have distinctly and expressly referred to it. The language would have been as clear as that of the following sentence:— “In all the other cases before mentioned, whether decided by an inferior tribunal of the United States, or by any court of a state, the Supreme court shall have appellate jurisdiction,” &c.

An example of the evidence here alluded to is furnished by the very section before us. Although it might be fairly inferred, from this section, that congress were to ordain and establish inferior tribunals, yet a power for that purpose is expressly given, in so many words, by the eighth section of the first article.

Another example is furnished even by the clause itself. The constitution meant to bestow on the Supreme court a general appellate jurisdiction over its own inferior tribunals, both as to law and fact. It therefore says, that it shall have appellate jurisdiction, both as to law and fact.

Other instances of this kind might be selected; but these are sufficient. They show that where power was meant to be given, it was given in plain terms, and not left to be cunningly deduced, from general terms, actually applied to a different subject. Yet, in defiance of all this, and in defiance, too, of the general character and policy of the constitution, we are called on to say that the constitution, when speaking of the cases in which the Supreme court should have appellate power, was thinking of federal and state courts, and by these words meant to subject the latter to the jurisdiction of the former.

3. It has been conceded that power must be expressly given. Now, in the present case, there is not a single word expressly applicable to state tribunals.

But it may be said that the terms of the constitution, though general, are express, and that the general terms include this case. In illustration of this idea, it may be further said, that there is no express delegation to the Supreme court of appellate jurisdiction over the inferior courts of the United States; yet it has this jurisdiction over them.

The general terms of the constitution, therefore, embracing, as is admitted, an appellate jurisdiction over the inferior courts of the United States, may, on the same principle, be said to embrace the jurisdiction in question. This I conceive to be the strongest argument that can be urged, in support of the appellate pretensions of the Supreme court of the United States.

The considerations already suggested may be used with great force against the argument just stated. My own impression is, that they are conclusive. But there is an additional remark, too important to be passed by.

All words, oral or written, the construction of which is judicially, or even rationally investigated, must be referred to the subject matter. Although it be true that general terms are to be generally understood, still their generality must be restricted to the subject to which the speech or writing relates. Illustrations of this elementary and obvious principle would be superfluous in this court, and in ordinary cases, perhaps improper. But this is not an ordinary case; and the court will therefore indulge me, while I mention two, furnished, among many others, by the constitution itself—one of them by the section under consideration.

“The trial of all crimes, except in cases of impeachment, shall be by jury.” What crimes? The expression is general: there is no exception. Yet, that the constitution meant “all crimes committed against the United States,” it would be as idle to attempt to prove, as it would be absurd to deny.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district, &c.” It is equally clear that the words “all criminal prosecutions” mean those only which are instituted on the part of the United States.

This plain reasoning at once detects and exposes the fallacy of the argument under consideration. The section on which it relies speaks of the judicial power of the United States only. The clause in question speaks of the courts of the United States only—the Supreme court of the United States, and such inferior tribunal’s as congress might establish. The relation between these courts, as supreme and inferior, is distinctly announced. They, and the distribution between them of the judicial power of the United States, constituted the subject matter. When, therefore, appellate jurisdiction is given to the Supreme court, that appellate jurisdiction must be considered as extended over the inferior federal tribunals, which had been mentioned, and not over state courts, about which not a word had been said.

This construction of the constitution, limiting the appellate power of the Supreme court to federal tribunals, is irresistibly enforced, by an argument deduced from the power given to congress to make such exceptions and regulations concerning it as they might deem proper. Is it not obvious that this appellate power was understood to be within the reach of congressional regulation and control? And is it not so, provided the restriction for which I contend be adopted? But if the appellate power of the Supreme court be extended to state tribunals, why then it follows that congress must have the power of regulating the proceedings of state, as well as federal courts; a power never yet exercised, nor even claimed, but, on the contrary, very distinctly disavowed. Congress, in relation to the appellate power of the Supreme courts over their inferior courts, have established several regulations. By the nineteenth “section of the judicial act, they have directed that the facts shall appear on the record. By the thirtieth section, they have directed that the evidence shall be recorded, and authorized a recourse to it, where the witnesses cannot be procured. These regulations, however, and indeed all prescribed by that act, relate exclusively to the federal courts. Not one word is said that has any relation to the state courts. The right of appeal from them is asserted, but no regulation is attempted. None; I mean affecting the trial or previous proceedings.

There is not only no regulation concerning appeals from the state courts, of the description just mentioned; but there is no attempt to provide a remedy, in case this appellate power should be controverted or opposed. Collision between the federal tribunals is foreseen, and the evil is corrected by mandamus or prohibition: but in case of collision between the federal and state tribunals, no remedy whatever is provided. The knowledge, on the part of congress, that no remedy could be provided, ought, it would seem, to have admonished them that they had gone too far.

This remark suggests another, not unworthy of notice. If the framers of the constitution had really meant to confer this appellate power on the Supreme court of the United States, they would not only have said so in plain language, but they would have provided some means for upholding the authority of the general government, in case of disagreement. A case of such importance would have been provided for in the constitution itself.

The foregoing arguments, if sound, establish the position, that, by the constitution, the Supreme court of the United States has no appellate jurisdiction whatever over the tribunals of a state. The argument now to be urged, is intended to show that, even if an appellate power does exist, it cannot be exercised in the manner and form prescribed by this mandate. This proposition, however, not being of much importance except in this case, will not be extensively discussed.

By the first section of the third article of the constitution, “the judicial power of the United States is vested in one Supreme court, and in such inferior tribunals as congrcss may, from time to time, ordain and establish.” Being vested in them by the constitution, it must remain in them exclusively and for ever. What the constitution has fixed, no law can change.

What then is the character of the power which this court is required to assume and to exercise? It is emphatically a judicial power. It is a power to enter upon record a judgment, although the record of this court shows that a judgment, final and conclusive, as far as the judicial power of the state vested in this court is concerned, has already been entered. In entering then the judgment prescribed, this court would not act by virtue of any judicial power derived from the state. That power has been exercised, and the judgment is beyond its reach. If then a new judgment is entered, the court must act, not by virtue of the judicial power of the state, but by virtue of the judicial power of the United States. But this is impossible, that power being by the court vested exclusively in the federal tribunals.

The difficulty will not be obviated by proving the act required to be done to be of a ministerial, and not of a judicial character, unless it can be also proved, that congress has a right to impose ministerial duties on the state judges. This will hardly be affirmed. Duties of this description cannot be imposed even on federal judges. This point has been settled by the judges of the Supreme court.

On this first question I shall add no more. Whatever the decision may be, the discussion will be useful. It is that sort of recurrence to fundamental principles, so forcibly recommended by our state bill of rights.

On the second question I have but little to offer. It was scarcely touched by Mr. Wirt, and I see no reason for departing far from his example.

Mr. Leigh’s leading position is, that the Supreme court is alone competent to decide, concerning the extent of its own jurisdiction. His reasoning, I understand to be this: wherever there is a concurrent jurisdiction between the federal and state tribunals, they form so far one judiciary system; they constitute one whole. The Supreme courts of the United States being at the head of the system, must, like all other Supreme courts, decide in the last resort; and that court having decided this question, no inferior tribunal ought to controvert the decision.

Every part of this proposition is pregnant with error. It is denied that the federal and state judiciaries form one system, or constitute one whole, on any ground whatever, and most especially on the ground of concurrent jurisdiction. The naked fact of concurrent jurisdiction implies no connexion. The county and corporation courts have a concurrent jurisdiction; but no relation, no connexion whatever. They are created by the same power, and amenable to the same government. Still there is no point of contact between them. But the federal and state tribunals derive their existence from different sources, and are amenable to different governments. Yet, according to Mr. Leigh, the fact alone of their having a concurrent jurisdiction, implies not only relation, but pre-eminence on one side. Now, in my estimation, it implies equality; and I see no more reason, taking this fact solely into view, for making the state courts parts of the federal judiciary, so as to give the latter an appellate jurisdiction over them, than for making the federal courts parts of the state judiciary.

Mr. Leigh appears to be mistaken, also, as to the fact that this question has been decided by the Supreme courts. The cases adduced by him I have since examined. They only prove that the jurisdiction now claimed has been exercised, but not that the question now discussed has been decided. In truth, the point was never presented to the court.

But if it had been decided after argument, this court would not be bound by the decision. The judges would approach it with great respect, examine it with great care, reflect upon it long and intensely; but after all they would decide as duty and conscience prescribed.

It is true that if this court were to decide any question concerning its own jurisdiction, the decision would be admitted by all the state tribunals, however exceptionable it might be deemed. It would be admitted, and ought to be admitted, because this is the Supreme court of the country; and this is the Supreme court from no other circumstance than this—that it decides in the last resort, and has the power to enforce its decisions against all the inferior tribunals of the commonwealth. But Mr. Leigh’s argument gratuitously bestows a supremacy on the Supreme court of the United States, in relation to this court, although the essence of the question is, whether it has that supremacy; that is, whether it has that appellate power which, it is conceded, would constitute a superior court.

But, supreme as this court unquestionably is, in relation to all the courts of this state, it has never yet said that it alone is competent to decide a question concerning the extent of its own jurisdiction. In fact, one court must often decide concerning the jurisdiction of another. If the court which decides happens to be an inferior court, its error, if it commit one, may be corrected. But still it has decided. If, for instance, a defendant should pray an appeal from the county court to this court, his application would be rejected. He would be told that this court has no immediate appellate jurisdiction over a county court; and the justices, I presume, would hardly think the counsel serious, who should tell them that they were undertaking to decide a question which this court alone was competent to decide. Illustrations of this doctrine might be furnished in great numbers; but it is unnecessary to suggest them to this court.

Before I conclude, I will notice a remark from Mr. Leigh, which ought to have been examined in a preceding part of this inquiry. He said it had been decided by this court, that a cause, depending in a state court against the citizen of another state, might be transferred before a federal tribunal; and he asked why this removal might not be effected after judgment.

It would be useless to repeat what has been already said concerning this power to remove before judgment. I will barely mention to the court, that in case of Brown v. Cropper and Wise, I was of counsel for the appellant, and, in fact, the only counsel in the cause; and I am perfectly assured that the case was argued and decided upon the law, and the law alone.

No doubt of its validity was suggested. In this statement I am justified, not only by my own recollection, but by the printed report of the case.

One more remark, and I have done. It has been eloquently urged that it is important that all questions, involving the construction of a treaty, should be decided by the national judiciary. It may be so; but the proposition is not conceded. Whether true or false, it is immaterial here. We are inquiring into the meaning of the court; not what the court ought to be. Those who formed the court were not of this opinion. If they had been, they would either have given an exclusive or an appellate jurisdiction to the court of the United States, in terms not to be misunderstood.

They did not believe, as has been contended here, that violations of treaties by judicial decisions constitute the most common source of wars. They knew better: they knew that wars spring from the ambition of princes, from an eagerness after wealth, as well as fame, always indulged by the military of a powerful nation, and more especially from the monopolizing and rapacious spirit which commerce never fails to inspire. In truth, no instance is recollected, in which a war has arisen from a decision supposed to be in contravention of a treaty. Judicial decisions are not between states and empires, but individuals. Their claims are too trivial, and themselves too obscure, to set in motion those strong feelings which impel nations into war. The people of this country did not wage war against Great Britain, because of the decisions of sir William Scott, repugnant as they were, not to a treaty, but to the great law of nature and nations, the benefit of which may be rightfully claimed by all the people of the earth, but because of the orders of the British government—the orders in council, which established a new law of nations, as iniquitous as it was new, and which the judge thought proper to adopt and to enforce.

Published in: on April 27, 2011 at 11:58 am  Leave a Comment  

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